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State v Yali [2005] PGNC 191; N2988 (13 December 2005)

N2988

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 368 0F 2005

THE STATE

V

JAMES YALI

MADANG: 7-10, 14-17, 21-24 NOVEMBER, 13 DECEMBER 2005

CANNINGS J

Criminal law – indictable offence – Criminal Code, Division V.7, sexual offences and abduction – Section 350, abduction – trial on a charge of taking away a woman against her will, with intent to carnally know her – elements of offence – meaning of "against her will".

Criminal law – indictable offence – Criminal Code, Division V.7, sexual offences and abduction – Section 347, definition of rape – trial on a charge of rape under Section 347 – elements of offence – meaning of "without ... consent".

Criminal law – indictable offence – Criminal Code, Subdivision IV.2A, sexual offences against children – Section 229E, abuse of trust, authority or dependency – trial on a charge of engaging in an act of sexual penetration of a child between the ages of 16 and 18 years with whom the accused had an existing relationship of trust – elements of offence – dispute as to age of complainant – meaning of "relationship of trust" – Criminal Code, Section 6A.

Criminal law – indictable offence – Criminal Code, Division V.7, sexual offences and abduction – Section 349, sexual assault – trial on a charge of the accused touching with a part of his body the sexual parts of another person’s body without consent – elements of offence.

Criminal Code – sexual offences and abduction offences – consent means free and voluntary agreement – Criminal Code, Section 347A, meaning of consent.

Criminal Code – sexual offences and abduction offences – Division V.7 – abolition of warning against danger of convicting on the basis of uncorroborated testimony of complainant – Criminal Code, Section 352A, corroboration not required.

The State alleged that the accused, a middle-aged man, abducted and sexually penetrated the complainant, a youthful female, against her will and without her consent. In the alternative the State alleged that, if there were consent, the complainant was aged between the ages of 16 and 18 years and an offence was committed as there was an existing relationship of trust between her and the accused. Further in the alternative, the State alleged that the accused was guilty of sexual assault. Four charges were laid and the accused pleaded not guilty to all of them. Nineteen exhibits were admitted into evidence. The State called 18 witnesses. The defence case consisted of sworn evidence by the accused. He testified that he sexually penetrated the complainant with her consent.

Held:

(1) There was insufficient evidence to support the conclusion that the complainant had been taken away against her will. Therefore the accused was not guilty of abducting her.

(2) The prosecution discharged the onus of proving beyond reasonable doubt that the complainant did not consent to being sexually penetrated by the accused. There was no free and voluntary agreement. The elements of rape were established.

(3) The complainant was aged 17 at the time of the incident but there was no relationship of trust between her and the accused for the purposes of Section 229E of the Criminal Code.

(4) The complainant did not consent to being sexually touched by the accused. However, as this related to an alternative charge, no conviction was recorded.

(5) The accused was accordingly acquitted of abduction (count 1) and abuse of trust (count 3). He was convicted of rape (count 2). No conviction was recorded for sexual assault (count 4).

Cases cited

The following cases are cited in the judgment:

Black v Corkery (1988) 33 ACR 134
Holman v The Queen [1970] WAR 2
John Jaminan v The State (No 2) [1983] PNGLR 318
R v Merembu Bongab [1971-1972] PNGLR 433
The State v Anton Kumak (1990) N835
The State v Bikhet Nguares Paulo [1994] PNGLR 335
The State v James Yali (2005) N2931
The State v James Yali (2005) N2932
The State v James Yali (2005) N2935
The State v Kewa Kai [1976] PNGLR 481
The State v Lucas Luma (2004) CR No 603 of 2004, unreported
The State v Michael Rave and Others [1993] PNGLR 85

Abbreviations

The following abbreviations appear in the judgment:

ACR – Australian Criminal Reports
ANZ – Australia and New Zealand
CBC – Christian Book Centre
CID – Criminal Investigations Division
Const – Constable
Dep – Deputy
Det – Detective
Dr – Doctor
Govt – Government
Hon – Honourable
Jr or Jnr – Junior
NCD – National Capital District
OIC – officer-in-charge
PMV – public motor vehicle
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
Prov – Provincial
PSC – Police Station Commander
Sgt – Sergeant
Snr – senior
Tech – Technical
WAR – Western Australian Reports

TRIAL

This was the trial of an accused charged with abduction and rape and, in the alternative, abuse of trust and sexual assault.

Counsel

N Miviri for the State
G J Sheppard and N Eliakim for the accused

VERDICT

CANNINGS J:

INTRODUCTION

This is a decision on the verdict for a man who pleaded not guilty to four sexually related offences.

BACKGROUND

Incident

The incident giving rise to the charges took place at Madang in October 2004. It is alleged that the complainant, a youthful female, was abducted and raped by the accused, a middle-aged man.

The alleged victim of the incident is referred to in this judgment as "the complainant", consistent with Section 1 of the Criminal Code, which says that that word means a person against whom an offence is alleged to have been committed.

Indictment

On 7 November 2005 the accused was brought before the National Court and faced the following indictment containing four charges:

Count No 1

JAMES YALI of SOR, RAI COAST, Madang Province is charged that he on the 13th day of October 2004 at Madang in Papua New Guinea with intent to carnally know OLIVIA DANIELS took her away against her will.

Count No 2

JAMES YALI of SOR, RAI COAST, Madang Province is charged that he on the 13th day of October 2004 at Madang in Papua New Guinea sexually penetrated OLIVIA DANIELS without her consent.

Count No 3

JAMES YALI of SOR, RAI COAST, Madang Province is charged that he on the 13th day of October 2004 at Madang in Papua New Guinea engaged in an act of sexual penetration of OLIVIA DANIELS a child between the ages of 16 and 18 years with whom he ... has an existing relationship of trust.

Count No 4

JAMES YALI of SOR, RAI COAST, Madang Province is charged that he on the 13th day of October 2004 at Madang in Papua New Guinea without the consent of OLIVIA DANIELS touched with his hands the sexual parts of the said OLIVIA DANIELS.

The charges were laid under the following provisions of the Criminal Code:

count 1 – Section 350(1)(a), abduction;

count 2 – Section 347, rape;

count 3 – Section 229E, abuse of trust, authority or dependency;

count 4 – Section 349, sexual assault.

The prosecutor, Mr Miviri, pointed out that the State would assert guilt under counts 1 and 2 in the first instance; and that counts 3 and 4 are alternatives to counts 1 and 2.

Arraignment

The accused pleaded not guilty to all four charges.

GLOSSARY

The following glossary lists the names of individuals and places referred to in the evidence.

Individuals

Adam Yawing – a police officer; State witness No 6
Alois Kingsley – a member of the Parliament; a friend of the accused
Alphonse Yohang – an uncle of the complainant; State witness No 2
Angela Yali – the accused’s wife
Annette Kora – a cousin of the complainant; a lawyer
Arnold Amet Jr – a lawyer
Brian Daniels – a brother of the complainant
Daniel Kapen – a police officer; State witness No 11
Dr Lahui Geita – a doctor at Modilon Hospital; State witness No 14
Dr Monica Clement – a doctor at Modilon Hospital; State witness No 13
Elizabeth Daniels – the complainant’s sister; the de facto wife of the accused; State witness No 5
Emile – a staff member of the accused
Emmanuel (Manu) Larry – a male friend of the complainant; State witness No 8
Garry Baki – Deputy Commissioner of Police
Grace – a woman said to be a friend of the accused
Helen Daniels – the complainant’s mother; State witness No 3
Isaac Daniels – a brother of the complainant
James Yali – the accused
James Yali Jr – a son of the accused
Jenny Ariku – a police officer; State witness No 15
Jimmy Namora – Police Station Commander, Madang Police Station
Joe Parker – a staff member of the accused
Joe Pecks – a staff member of the accused
John Koito Bananga – a former employee of the Madang Provincial Government; State witness No 17
Johnson John – a male friend of the complainant; State witness No 7
June Kasiriri – a friend of the Daniels
Junior Diop – a male friend of the complainant and her brother, Oscar
Kevin Pamba – a journalist with The National
Kisikau Polaiap – Helen Daniels’ brother
Markom Ururu – the accused’s sister
Martina – an aunt of the complainant
Masbut – a staff member of the accused
Michael Kasi – the accused’s First Secretary
Michael Ururu – the husband of the accused’s sister
Mr Owen – a friend of the complainant
Olivia Daniels – the complainant; State witness No 1
Oscar Daniels – the complainant’s father (deceased)
Oscar Daniels Junior – the complainant’s brother; State witness No 4
Paias Wingti – a member of the Parliament
Peter Kaiwi – Elizabeth Daniels’ former partner
Peter Yama – a member of the Parliament
Petty Poi – a female neighbour of the complainant
Polaiap Sawai – a friend of Kisikau Polaiap
Reuben Sindiwan – Police officer with Madang police
Robert Galadia – a male friend of the complainant
Rose Yawing – a teacher at Tusbab Secondary School; State witness No 16
Sammy Tinpidu – a male friend of Oscar Daniels Junior; State witness No 9
Sheila Baim – a friend of the complainant and Elizabeth Daniels; State witness No 10
Sigit Yali – brother of accused residing in Lae
Sister Kostka – a sister at Vunapope Health Centre
Steven Yalamu – the investigating police officer for this case; State witness No 18
Teddy Morris – Sheila Baim’s boyfriend; State witness No 12
Thomas Eluh – the principal police prosecutor
Tumbuna Track – a recording studio in Madang town
Wilfred – one of the accused’s staff

Places etc

Airlink – an airline company based in Madang town
Beon – a correctional institution near Madang town
Bomana – a correctional institution near Port Moresby
Coastwatchers – a hotel; a place, in Madang town
Elwag Trading – a business house in Madang Province
Gordons – a suburb of Port Moresby
Gordons International – a school in Port Moresby
Harbourside Hotel – a hotel in Lorengau
Henao Drive – a street in Port Moresby
Ileg – a Police Station in Madang Province
Jais Aben – a hotel near Madang town
Jomba – a suburb of Madang town
Kalibobo – a part of Madang town
Kauris – a village near Madang town
Kina Beach – a beach near Madang town
Kokopo – a town in East New Britain Province
Kusbau – a suburb of Madang town
Kusbau Primary School – a school in Madang town
Lamana – a hotel in Port Moresby
Loniu – a place in Manus Province
Lorengau – the capital of Manus Province
Lutheran Shipping – a business house in Madang town
M’Bunai – a village in Manus Province
Madang Butchery – a supermarket in Madang town
Madang Resort – a hotel in Madang town
Madang Teachers College – an educational institution in Madang town
Madang Technical College – an educational institution in Madang town
Madang town – the capital of Madang Province
Manam Island – an island of Madang Province
Mis – a village near Madang town
Mis Trading – a business house near Madang town
Modilon Hospital – the main public hospital in Madang town
North Coast Road – a main road leading out of and in to Madang town
Port Moresby – the national capital
Rabaul – a town in East New Britain Province
Rai Coast – a district in Madang Province
Redscar – a part of Madang town
Sagalau – a village in Madang town area
Six Mile – a suburb of Port Moresby
Smugglers Inn – a hotel in Madang town
Songbird – a restaurant in Port Moresby
Sor – the accused’s home village, Madang Province
Tamalili – a plantation in East New Britain Province
Tusbab High School – a school in Madang town
Vunapope – a place in East New Britain Province
Yomba – a suburb of Madang town

THE STATE’S CASE

Outline

Nineteen exhibits were admitted into evidence and 18 witnesses gave oral evidence.

The exhibits

Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

TABLE 1: SUMMARY OF EXHIBITS

Exhibit Description Content

A Record:

of States that he was interviewed by Det Snr Sergeant Steven interview: Yalamu, corroborated by Det Snr Sergeant Frank Kikoli, in thepresence of lawyer Arnold Amet Jnr, Angela Yali and James Yali, Elizabeth Yali – he does not know his date of birth – he is 42 the accused, years old – has two wives and nine children – is a politician in Madang – lives at the official government residence – 14.12.04 represents Rai Coast electorate in the National Parliament – is the provincial governor – has held that position for almost two and a half years. He was asked a number of questions as to what he was doing between 10 and 16 October 2004, and in particular on 13 October 2004. He replied to most of those questions that he would remain silent. He identified a vehicle as his vehicle.

B Witness:

States that on 29.10.04 he was instructed by Det Snr Sgt statement: Yalamu to accompany him to two crime scenes – residence at First Constable back of Madang Butchery and Governor’s office, Madang Reuben Provincial Government Office, Jomba – took nine photographs Sindiwan, and prepared two sketch plans.

Police officer,

Madang CID,

16.11.04

C Witness:

States that he corroborated the interview of the accused on statement: Det 14.12.04.

Snr Sgt Frank

Kikoli, Police

officer, Madang

CID, 19.11.04

D Document:

States that she is 17 years of age and "I wish to retract or recant entitled "My the statement that I have signed which is being held by police – affidavit before I would like to state that the statement held by the police was my Lawyer": signed by me without myself being made aware of its full contents and implications – I signed the statement because I Olivia Daniels, was picked by Constable Adam Yawing who threatened me undated. and forced me to sign the statement – about two days later upon realising that I have signed a statement which was destructive and defamatory to Hon James Yali alleging the rape of myself by James Yali – my family and I wrote to the OIC CID on 28 October 2004 and formally withdrew the complaint or statement – however I continued to receive police intimidation and threats to stand firm on the statement which I signed without knowing its contents – particularly from Constable Adam Yawing who did at one time under the influence of alcohol interviewed me in his house – I again wrote a letter to Deputy Commissioner Operations Mr Garry Baki on 12 November 2004 and in the letter I clearly stated that the allegations of rape was made up and false and that the complaint be withdrawn against Hon James Yali – I denied the allegations of rape of myself by the Governor James Yali on 13th October 2004, because I then clearly recall that it was around 9.00 pm and 9.30 pm James Yali (Junior) came around to our residence in his father’s vehicle and asked me to go with him. James Yali Jnr as everyone knows in our family is my boyfriend. So I went with him. About two hours later I was with James Yali Jnr at his father’s official residence when Hon James Yali arrived in Hon Alois Kingsley’s vehicle. Hon James Yali shouted at his son and demanded the keys of his vehicle from his son. After taking the keys Hon James Yali drove off and following Hon Alois Kingsley’s vehicle. James Yali Jnr walked me to my residence and left me there. I did not at any time report or lay any complaint against anyone nor did I visit any police station" – signed with full consent and knowledge by Olivia Daniels (alleged victim).

E Letter:

This letter is headed "re: our letter of demand for K50,000

The Daniels family/Mr James Yali,

Governor,

Madang Province,

26.10.04

"We write to advise that our demand is that you pay K50,000.00 to us immediately and we will withdraw the complaint against you. You make available to us K25,000.00 in cash before we withdraw the complaint and the other half be paid within 12 months after the matter has been withdrawn. We also demand that an agreement be signed between you and the Daniels to insure the above payment is made accordance with the agreement. [sic]

For your co-operation and immediate response."

Signed by Mrs Daniels, Mr Brian Daniels, Mr Daniels Jounior [sic] and Ms Olivia Daniels.

F Affidavit:

This affidavit gives a version of the events of 13.10.04. The deponent states that on the morning of Wednesday 13 October Olivia Daniels, 2004 she saw the accused at her house and he dropped her off 28.10.04 at school – the accused arrived at her house at about 8.00 pm for the first time – then he returned after about 15 minutes and she got onto the back of his Toyota Landcruiser utility. They drove some distance then eventually went to the Madang Provincial Government offices where the alleged rape took place – then he dropped her home – further details of this statement are referred to in the evidence.

G Affidavit:

States amongst other things that the statement alleging the rape of herself by Mr James Yali is fabricated and not true and she Olivia Daniels, wishes to categorically deny and withdraw all allegations – this 13.12.04 affidavit consists of 88 paragraphs.

H Letter:

This letter is headed "Re: withdrawal of complaint against Hon Olivia Daniels"

The Daniels/ James Yali laid by Daniels Jnr – OIC, CID, Madang Police Station, 28.10.04

It states that:

"We refer to the above. This letter serves as an intention to formally withdraw the complaint against Hon James Yali laid by the above complainant Daniels Jnr.

We view this complaint to be without basis both in law and in principle.

The reasons behind the formal withdrawal of the complaint is personal which need not be mentioned here.

At this juncture, we formally withdraw the complaint laid by the said Daniels Jnr on Sat 23rd October 2004 pursuant to the powers enabling under the District Court Act.

For your appropriate actions."

Signed by Olivia Daniels, Daniel Jnr, Brian Daniels and Mrs Daniels.

I Letter:

This letter is headed "re withdrawal of alleged complaint Olivia Daniels/ against James Yali". Amongst other things it refers to a Deputy previous letter dated 28 October 2004 addressed to the OIC, Commissioner CID, Madang and states:

Operations, Police "Because no action was taken by your policemen in Madang in Headquarters, relation to my first letter of withdrawal of complaint, I now Attention Mr write direct to you so that you could give the appropriate Garry Baki, direction to your policemen in Madang to cease from taking 12.11.04 any further action in relation to the false complaint."

Signed by Olivia Daniel [sic]

J Affidavit:

States that he worked with the Department of Transport and Alphonse lives in Gordons, NCD – in 2003 Olivia and Oscar Daniels Yohang, lived with him at Gordons, Olivia was doing Grade 9 at Gerehu 01.07.05 High School and Oscar was doing Grade 11 at Kilakila High School – recalls an incident in 2003 – about 10.30 to 11.00 pm Olivia was led to his residence by some neighbours – several days later the accused gave him K300.00 to buy some food and said he would come later to share the meal with them and apologise for what happened – however he never came for dinner.

K Affidavit:

States that the accused met her in 2003 and seduced her – Elizabeth Olivia and Oscar Junior travelled to Madang from Port Daniels, Moresby in December 2003 – the accused used to beat her – in 18.04.05 April 2004 the accused got her a house at the back of Madang Butchery – she lived there from April 2004 to April 2005 – in October 2004 she went home to Manus to attend to some family matters, with her mother – her brother Brian was to supervise the others – the accused and Wilfred came to Manus from 22 to 25 October 2004 – went to her village, M’Bunai, to discuss what he said was the false allegation that he had raped Olivia – on 25 October 2004 the accused, Wilfred and her mother returned to Madang – states that she arrived on 1 November 2004, with an uncle and a cousin – her mother told her then about being given K5,000.00 by Michael Kasi – on 4 November 2004 James Yali and others came to her residence and offered K25,000.00 cash, with a letter of demand they drafted – they got the cash and deposited it into ANZ Bank – on 6 November 2004 she and her mother delivered a letter of withdrawal, that was drafted by James Yali, to Snr Sgt Yalamu at Madang Town police station – on 8 November 2004 she went to a meeting at the Governor’s house at Kalibobo, as requested, to discuss how they could remove Olivia out of Madang to Lae to prevent police investigation – on 9 November 2004 she went with her relatives to inform police that Olivia and her mother were going to Lae, and was arrested for trying to stop police investigations – she was detained in custody from 9 to 26 November 2004 – on 26 November 2004 the National Court granted her bail on condition that she not leave Madang Province and not interfere with State witnesses – James Yali threatened her – on 7 April 2005 she left for Manus by ship – arrived on 8 April 2005 and was informed that the National Court in Madang had ordered that she be arrested and detained – left Manus on 13 April 2005, accompanied by Constable Minzyki, overnighted in Port Moresby, and arrived in Madang on 14 April 2005 – appeared before National Court on 15 April 2005.

L Document:

States that she is a remandee at Bomana Gaol – has been To whom it charged with attempting to pervert the course of justice and may compounding crimes – she was arrested and charged on 9 concern/ November 2004 – she does not wish to be a State witness any Elizabeth longer as she has been in prison for five months. Daniels, undated

M Birth Under the letterhead of Catholic Health Service Archdiocese of certificate: Rabaul, this document headed "Birth Certificate" certifies that Olivia Daniels, Daniels, Olivia, female, the child of Helen Daniels and Oscar undated Daniels from the village of Tamalili plantation, was born on 22 July 1984 at the time of 7.50 pm at the Vunapope Health Centre.

N Statement:

States that he is a police officer attached to Ileg Police Station, Snr Const Madang Province – on 28.10.04 went to Madang from Ileg to Daniel Kapen, find out about a relative, Olivia Daniels, who had allegedly 10.11.04 been raped – went to Adam Yawing’s house at Tusbab High School – was informed by Constable Yawing that there had already been a police negotiation with James Yali’s representatives at Smugglers Inn – later went with Olivia Daniels, Constable Yawing and Olivia Daniels’ mother to Smugglers Inn for a further peace negotiation – told the meeting that delaying of an investigation is impossible and beyond their powers – after saying that the meeting was called off.

O Statement:

States that he was at the back of Madang Butchery on 13 October 2004. He saw the accused pull a lady out of the Teddy Morris, vehicle and hold her against his side as they walked into the 24.10.04 house – gives an account of seeing Olivia Daniels lying face down on the bed – the next morning he used a company vehicle to pick up Olivia, Sheila and Oscar to take them to the hospital.

P Affidavit:

States that she saw Olivia Daniels in the outpatients department Dr Monica of Modilon Hospital on 14 October 2004 – she presented as a Clement, case of sexual assault – gives results of her examination of the complainant – various forms including a sexual assault form 06.12.04 are annexed.

Q Affidavit:

States that Olivia Daniels, a 17-year old student, was seen by Dr Lahui himself and Dr Monica Clement on 14 October 2004 – states Geita, that the examination and laboratory findings are consistent 31.12.04 with recent sexual intercourse where virginal penetration and ejaculation have occurred.

R Sexual assault:

This document consists of two pages – first page headed laboratory "sexual assault laboratory request form" – second page headed request form: "biochemistry examination".

Re Olivia

Daniels,

14.10.04

S Statement:

This is a handwritten statement headed: "Statement Wednesday 13th October 2004" – it gives an account of the events of that Olivia Daniels, day and includes some writings that were crossed-out. undated

Oral evidence

Table 2 lists and describes the witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 2: WITNESSES CALLED BY THE STATE

No Name Description Day Date (2005)

1 Olivia Daniels Complainant 1-4, 9 7-10, 21 Nov

2 Alphonse Yohang Complainant’s relative 4 10 Nov

3 Helen Daniels Complainant’s mother 4-5 10, 14 Nov

4 Oscar Daniels Junior Complainant’s brother 5 14 Nov

5 Elizabeth Daniels Complainant’s sister 5, 7 14, 16 Nov

6 Adam Yawing Police officer, constable 7 16 Nov

7 Johnson John Family friend 7 16 Nov

8 Manu (Emmanuel) Larry Family friend 8 17 Nov

9 Sammy Tinpidu Family friend 8 17 Nov

10 Sheila Baim Family friend 8 17 Nov

11 Daniel Kapen Police officer, senior constable 8 17 Nov

12 Teddy Morris Family friend 8 17 Nov

13 Dr Monica Clement Doctor 9 21 Nov

14 Dr Lahui Geita Doctor 9 21 Nov

15 Jenny Ariku Police officer, first constable 9 21 Nov

16 Rose Yawing Schoolteacher 9 21 Nov

17 John Koito Bananga Former prov govt employee 10 22 Nov

18 Steven Yalamu Police officer, senior sergeant 10 22 Nov

The complainant, Olivia Daniels, was the first witness for the State. She is a young woman, aged between 18 and 21 years. Her exact age was a contentious issue in the trial and will be addressed later.

In examination-in-chief she stated that there are five people in her family. Her sister, Elizabeth, is the oldest in the family and is married to the accused, James Yali.

The accused has been married to Elizabeth for about two years. The complainant resides at the back of Madang Butchery in Elizabeth Yali’s house. Elizabeth is also known as Elizabeth Daniels.

The complainant said that on the morning of 13 October 2004 she was at the house with her elder brother, Oscar Daniels, also known as Oscar Junior Daniels. About 7.00 am the accused came to the house in his vehicle, a white Landcruiser open-back utility. The accused was driving the vehicle and no one else was in the car with him.

The accused asked her and Oscar if they would like to go out with him to Madang Resort that night for dinner at the governors’ conference. The accused was in the vehicle when he spoke to her.

He did not say anything further. He just asked her and Oscar to go out to dinner with him and then he left. She did not say anything. And Oscar did not say anything. The accused drove out and then shortly afterwards she started to walk out of the yard to head towards school. She was not far out of the Madang Butchery area and getting ready to catch a bus when the accused returned in his vehicle, stopped, and asked her to get in. She refused to get in and told him that she wanted to walk to school with one of her girlfriends.

However, he stopped the vehicle and told her to get in and that he would drop her off at school. So she got into the cabin with him. He dropped her off at school.

She attended classes that day and after school caught the bus home. She dropped off her schoolbooks at the house, changed her clothes, and went to softball training. She wore sports shorts and a shirt. She made her way to the field. By this time it was about 4.00 pm. She did her softball training until about 5:30 pm.

She then told a male friend, Junior Diop, that James Yali had asked her to go out with him for dinner at Madang Resort and that she had told James that she did not want to go with him and that she would be staying back. She had this conversation with Junior Diop at about 6.00 pm.

After her conversation with Junior, he took her to his house at Kusbau Primary School. He left her there with his mother and sister and they drank water. Junior Diop told his mother about what the complainant had told him re James Yali asking the complainant to go to the dinner at Madang Resort.

Junior Diop then walked with her to her house at Madang Butchery, where he left her. Also with them were Robert Galadia and two other boys whose names she does not know. By the time she got back to the house on this occasion it was about 7.00 pm. She thought that the accused would have come and got her brother Oscar by this stage. But she found that Oscar was still in the house.

She then went into the house and got some water and gave it to the boys who had accompanied her there.

The boys left and she went into the house and prepared dinner for herself and Oscar. As it turned out, she did not have dinner.

She was still in the kitchen when the accused and three other persons (who she identified as Masbut and two others from the Highlands) came to the house and said they wanted to take her and Oscar to the dinner at Madang Resort.

Oscar passed this message to her but she told Oscar that she would not be going to dinner with the accused. She told Oscar that she had homework to do and that her exams were only two weeks away.

Oscar told her that he would inform James. Then the message came back that James said it was all right, and they drove away. Oscar got into the car with them.

There were two other people in the house at the time: two boys known to the complainant as Manu and Johnson. She does not know their second names.

Before Oscar left he told her not to stay in the house alone so she called out to her neighbour, Petty Poi, and Petty came and stayed with her.

About fifteen minutes later the same vehicle that had picked up Oscar, the Landcruiser, came back. The vehicle was parked at the gate. Petty told her that the Governor’s vehicle was out at the gate. The complainant was about to open the gate when the accused called out and told her that Oscar wanted her to go to Madang Resort and have dinner with him.

She told the accused that she had already told Oscar that she was not going as she had studies to do. When she said that to him, the accused stared at her and told her that if she did not get onto the vehicle he would kill her brother and put his body on the vehicle and drop the body on the North Coast Road. He said this harshly.

She felt afraid and concerned that if she did not get on the vehicle the accused would kill her brother.

She noticed that the accused was drunk as she could smell alcohol on his breath.

She then went and told Petty that she would go with the accused. At that time Petty was next to the water tank at the side of the house. Manu was inside the house with Johnson. They were inside the boys’ room, she thinks.

She locked the outside lock of the house and informed Petty that the Governor had come to pick her up as Oscar had requested her to go and have dinner with him.

She then locked the gate and got onto the back of the Landcruiser.

The accused told her to sit inside the cabin of the vehicle with him. But she did not do that as he looked drunk.

The accused then drove out and they went past the CBC. Then they went past Madang Resort. She was wondering why they were driving past Madang Resort. So she hit the side of the vehicle with her hand. She did not say anything. The accused, who was driving the vehicle, did not do anything. He just kept driving.

The complainant was shown a photograph of a Toyota Landcruiser utility. She identified the vehicle in the photograph as the vehicle the accused had been driving and in which he picked her up. She said, by pointing to a spot in the photograph, that she was sitting in the back left-hand corner of the tray. She said she banged the side of the vehicle quite hard. She cannot recall how many times. The vehicle was travelling fast. The windows of the vehicle were wound up at that time. The vehicle did not slow down when she banged on the side of the vehicle. He slowed down at the Tusbab High School junction. She thought about jumping off the vehicle at that point, but did not do so as the vehicle took off again. The accused then drove the vehicle to Smugglers Inn.

The vehicle slowed down again at the Smugglers Inn gate. She did not jump off there as the gate was open and the accused drove the vehicle inside.

There was one security guard at the gate. She did not try to approach him as the vehicle was driven past the security guard and parked at the back of the hotel.

The accused got out of the vehicle and told her that he was going to see a man in the hotel. He told her to wait on the vehicle.

She thought about running away at that point but did not do so as he had told her to stay in the vehicle until he returned.

He returned after a short while and said that the person he had come to look for had already left. He told her to sit with him in the cabin. But she refused. He said if she continued to sit on the outside of the vehicle people would see and think that he was carrying around a prostitute. He insisted that she should sit inside the cabin. She refused again. Then he went to the side of the vehicle and tried to hit her. So she jumped off the vehicle and moved to the other side. There was nobody else around at that time.

He wanted to hit her and lifted up his hands and walked towards her and told her that he would hit her. So she got into the cabin. He also got in and drove off. The security guard opened the gate and then the accused signalled to turn the car left.

She asked him why they were going left when they were supposed to be going to Madang Resort. He told her that they were going to pick up his girlfriend, Grace. He did not say anything else.

She then told him that it was already late and dark and they should not go out that way. He told her that he was going to go to the provincial government office to call Grace. He told her that she does not know anything and to shut up. By this time it was 9.00 or 10.00 pm. She recalls seeing the time in the vehicle.

They then went to the provincial government office. He parked the vehicle at the gate and went into the office. He stayed a short time, then came out and told her that Grace was at Madang Teachers College and that they would go there and pick her up. She did not say anything.

He got into the vehicle and drove towards the public tank area on the North Coast Road. At that point he put his hand on her right thigh. She fended off his hand, then punched the windscreen of the vehicle. He then told her that if she broke the windscreen he would fuck her badly.

She punched the windscreen three times. She did this because he had touched her thigh. She cannot recall how many times he said the word "fuck". When he said that he stared at her and spoke in a loud voice. This made her feel scared. She was afraid that he would fuck her up badly.

He continued driving and as the vehicle came towards the narrow bridge, he again touched her thigh. She tried to open the door and jump out. He then said to her ‘you have previously done that in Moresby and I know you can do it again’. He had again touched on the top of her right thigh. He did not say anything when he touched her thigh. She told him that she would jump. She made an attempt to open the door but he reached over and closed the door with his hand. The vehicle was not travelling fast at that stage.

The complainant’s evidence was that the accused was suggesting that she had previously jumped off a vehicle. She said this had happened previously in 2003. She could not recall the month.

There was an objection to this line of questioning on the grounds of relevance (as the questions were not relating to the incident which had given rise to the charges) and prejudice. The objection was overruled on the basis that the questions related to answers given by the witness.

The complainant then gave evidence of an incident that, she says, happened in Port Moresby in 2003, near the main gate of Gordons International School. She was in a taxi sitting on the offside and the accused was in the back. The taxi was not moving very fast. She jumped out because the accused had told her that he would drop her off at the house where she was staying but had taken her on a different route. Her house at the time was in Henao Drive, Gordons. She was staying with her aunt, Martina, and her uncle, Alphonse Yohang. They were supposed to drive straight home but the accused directed the driver to take a different route. This was about 10.00 pm. When she jumped from the moving vehicle she was injured on the right hand side of her upper body and the right forehead. She scratched her body on the bitumen. She ran to the Airi family’s house. She went to the gate but it was locked so she jumped over the fence. One of the Airis’ daughters was there and she saw blood and asked her what had happened. She told her that the driver had taken her brother Oscar away and the accused had wanted to drop her off at home but they had taken a different route so she jumped out of the moving taxi.

The complainant was asked more questions about the incident of 13 October 2004. What happened after she tried to open the door and jump from the vehicle? She said the accused continued driving the vehicle. When they went past Madang Teachers College she asked him about what he had said earlier about picking up Grace. He said that Grace was at the village, but did not say which village.

He drove further out and went past the Mis Trading store. He stopped the vehicle there, turned it around, and drove towards town. He told her to switch on the music. Then he signalled to go into the provincial government offices again. She asked why they were going back there. He said that he would call Grace again as earlier he had tried and her mobile was off. By this time it was around 10.00 pm.

He drove into the premises of the provincial government and parked near a back door, on the side facing the police station.

He stopped the car, turned off the engine, opened the door and went into the office. He stayed inside a short time, returned, and told her to go inside also.

She refused because he had touched her thighs and used some words that made her feel reluctant about going into the office. He walked towards the vehicle and she wound up the glass. He had come to the side of the vehicle that she was sitting on. He went around to the driver’s side and opened the door. The inside lights came on. There were people walking nearby who were returning from a crusade. When he saw them he closed the door again. She does not know the exact number of people who were around. It was dark. Also the vehicle’s glass was tinted. After he closed the door she spoke louder and he told her to shut up.

She asked him why they had come back to the office and why he was calling Grace. The window was still up. She tried to call out to the people who were walking past but he told her to shut up.

After the people had walked past he went to his office and returned and stood on the doorway and told her to go into the office. However, she did not follow his instructions. He came back to the vehicle, which was still locked, and this time used his keys to open the door. He told her to get out, but she refused. He grabbed her legs and carried her into the office and put her onto a sofa and then opened the curtain and looked outside to see if anyone was around.

He stood close to his desk and told her to call Elizabeth. She told him that Elizabeth was at the island. It was already dark. They had no phone. So she would not call Elizabeth.

He walked towards her and pushed her onto the sofa. When she was down on the sofa he got down on his knees and pressed against her legs and she could not get up.

He was on top of her and told her to take off her shirt. She did not do that, so he lifted up her hands and pulled off her shirt and then took off her bra.

He took off his shirt and went on top of her and started to suck her breasts. She shouted for help but he slapped her. She sang out. She was crying. He told her to shut up. He slapped her on her right cheek and then slapped her on the left cheek. He told her to take off her trousers but she did not do so. She was still crying. He was down on his knees blocking her legs. When she did not comply with his demands, he took off her trousers himself. He remained in the same position with his knees between her legs. He took her trousers completely off. She punched him on his chest twice. He told her to keep quiet. When he was taking off her trousers she did not say anything else. He unzipped and took off his trousers. He pushed his finger into her vagina. He pushed it in and out several times and then put his tongue into her vagina. He pushed his finger into her vagina again. Then he put his penis into her vagina and had sexual intercourse with her. After that he took out his penis and put his fingers back inside her vagina and then pushed his tongue inside and licked her vagina.

He then got up and put on his trousers and told her to wear her clothes. She could not do that as she was weak and she just lay there. She watched him put on his trousers and shirt. Then he took her shirt and put it on her. He then got her underwear, tights and also her trousers and put these on her.

He told her to go out of the office and walk to the vehicle. She was too weak to walk and unable to get up. He put out the lights and took her outside and left her in the vehicle. He went back into the office and closed the door. He put her inside the cabin, again in the offsider’s seat. He switched the security light back on and locked the door and returned to the vehicle. He started the vehicle and drove off.

They came to Lutheran Shipping in town. He slapped her on the cheek and told her to get up. She was very weak. They went to the back of Madang Butchery. He stopped the vehicle there and told her to get out and leave. She was still weak. She could not get out. She sat in the vehicle. He reversed the vehicle, then drove on, past Kalibobo clothing shop.

On the way he slapped her on the cheeks again and tried to wake her up. They drove all the way around the market place and then came to Lutheran Shipping. Then he signalled to turn the car right and then they went to her house. At the house he parked the vehicle at the front, opened the gate himself and drove the vehicle in, stopping right in front of the house door. He woke her up and told her to leave the vehicle and walk to the house. She was still weak and could not walk.

He left the vehicle, went into the house, and switched on the lights in the living room, the kitchen and the security light. Then he came to her side of the car and opened the door and carried her into the house and left her on the bed. She heard the car take off.

Normally he only came to the house when Elizabeth was there. He had not turned off the lights in that fashion before. She was lying on the bed, crying. After a short time Elizabeth’s friend, Sheila, and her husband, Teddy, and Johnson came and woke her up. She was crying so they left her and went outside. She stayed on the bed.

Then Oscar, her elder brother, came and stood at the door of the room and told her to open the door and asked why she was crying. She told him that James had done a bad thing to her.

Oscar went outside, telling her to remain on the bed. He got Johnson and Sheila to call the ambulance. They went away and came back and said that there was no ambulance at the hospital. They told her that things would be okay and that they would take her to the hospital in the morning. The next day Sheila, Teddy and Oscar took her in a company vehicle to the hospital. That was about 8.00 am.

Sheila went to see a female doctor to tell her what happened. The doctor called her into a small room and asked her some questions and told her that her name was Dr Clement and that she would examine her in the presence of another doctor, a male doctor.

The examination took place. She lay on the bed. They told her that she would feel some pain and that she would get a copy of the report later.

She felt pain when her vagina was examined. She was given two tablets to avoid pregnancy.

Oscar told her not to return to the house. He left her at Kina Beach at an aunt’s house. Oscar did not want her to go to the house as the accused might do something bad. She stayed there until Oscar came that night, got her, and took her to Kusbau. From there, they rang her cousin-sister, Annette Kora, who is a lawyer in Port Moresby. She was told the next day the bus would come and pick her up and take her to Lae.

The next day, the bus came and she was taken to Lae and dropped off at her aunt’s house. She stayed there for two days then received a call from Elizabeth. She told Elizabeth the story and the reason she was in Lae.

She stayed in Lae until one week before her exams. She got on to a bus on Friday and arrived in Madang that day.

Oscar told her that the accused had heard rumours. The next day, Saturday, she saw a police officer, Mr Yawing, and made a statement. He asked her to write a statement but she had already done one.

Since reporting the matter to the police, the accused has come around to see her at the Madang Butchery house. He saw her when she returned from Port Moresby.

That was the end of the examination-in-chief.

In cross-examination the complainant stated that her father is Oscar Daniels and her mother Helen Daniels.

It was put to her by the defence counsel, Mr Sheppard, that she was actually born on 22 July 1984 at Vunapope Hospital, Rabaul, East New Britain. She said no, that is not her date of birth. The date she knows is 23 July 1987.

A document was shown to her, which Mr Sheppard suggested was her birth certificate. He asked her if she recognised the document. She said she had not seen it before. There was discussion between bench and bar as to its evidentiary value. It was initially marked for identification, then admitted as exhibit M.

She was shown a document, exhibit D, which is a handwritten, undated two-page document bearing the title "Affidavit". This document, which appears to be signed by the complainant, states that she wished to withdraw the "false allegations" made against the accused.

The complainant said that she did write the document. She was told to write it. She was given a typed version of the document to copy from. This was done at Jais Aben. She said that she read it, understood it and signed it but the contents of it were not true. She was told to write it by Joe Parker and Mrs Angela Yali.

Mr Sheppard asked her about two other documents referred to in the undated affidavit. The first one is referred to in paragraph 5. It is a letter she says she wrote to the OIC, CID dated 28 October 2004 formally withdrawing the complaint or statement. She said that, yes, that letter was written.

The second document was referred to in paragraph 7. This was a letter to Deputy Commissioner Operations, Mr Garry Baki, dated 12 November 2004. In this letter she stated that the allegations of rape against the accused were made up and false and she wanted the complaint withdrawn. She said yes, she did sign such a letter to Mr Baki. It was a document made for her to sign.

It was put to her by Mr Sheppard that this was the third document she had signed stating that the allegations against the accused were false. She is now in court giving evidence that says something completely the opposite. How could anybody believe what she was saying, if she is willing to sign anything that is put in front of her?

The complainant replied that she signed the three documents because Elizabeth told her that something terrible would happen if she did not sign them.

Mr Sheppard then showed her a letter, which was admitted into evidence as exhibit E. This is a letter to Mr James Yali, Governor, Madang Province, from "the Daniels family" dated 26 October 2004. The letter is about a demand for K50,000.00. It states that the Daniels family is demanding K50,000.00 so that the complaint against the accused can be withdrawn. It proposes that K25,000.00 in cash be paid immediately before the complaint is withdrawn and the other half could be paid within 12 months after that. An agreement would be signed between the accused and the Daniels family to ensure the payment is made in accordance with the agreement. The letter appears to have been signed by four people: Mrs Daniels, Mr Brian Daniels, Mr Daniels Junior and Miss Olivia Daniels. The complainant acknowledged signing that letter.

It was put to her that this letter showed that the whole story had been made up for the purpose of demanding K50,000.00 from the accused; and that the story about the rape is all made up. The complainant replied that that letter had been taken to her at Madang Tech and she and Oscar signed it at Madang Tech.

She was asked what the accused’s response to the letter was. She said she did not know as she was in Madang Tech.

She was asked whether she was prepared to withdraw the allegations if the money had been paid in accordance with the letter of demand. The complainant did not answer that question directly. She stated that it was not a false allegation. It was forced sex.
It was put to the complainant that the sexual acts that took place were completely and utterly consensual. She replied that that was not correct.

Mr Sheppard asked the complainant if she had had a conversation with Kevin Pamba of The National at some time after 13 October 2004. She said no. She was referred to a front-page story in The National that refers to an affidavit by the complainant dated 13 December 2004. She said that she did not contact The National about the affidavit. She could not say whether she had signed such an affidavit until it was shown to her. She said she was taken from Madang in the accused’s car and hidden in Lae. She read the story in the newspaper, when she was in Lae.

That marked the end of the second day of the trial, with the cross-examination of the complainant continuing.

When the trial resumed on its third day, 9 November 2005, the court viewed two places referred to in the evidence. This was done in accordance with Section 574 of the Criminal Code, which provides that the court may in any case view any place or thing that it thinks desirable that it should see.

The first place was the provincial governor’s office and the area outside it. The second was the residence at the back of Madang Butchery and the area outside it.

The complainant showed us the place outside the office door where, she said, the accused had parked his vehicle. Mr Sheppard asked her a number of questions about the security lighting. We went inside the governor’s office. The complainant indicated the sofa where, she said, the sexual acts took place.

We then travelled to the back of Madang Butchery and inspected the residence occupied by the complainant and her family on 13 October 2004. The complainant pointed out a number of locations: the gate, being the entrance to the property; the place where the accused was said to have parked his vehicle in the course of that evening; and the water tanks. She took us inside the residence, which is on the bottom floor of a two-level building. She showed us the kitchen; the living room; the boys’ room; and the bedroom to which, she says, the complainant carried her.

We then returned to the courtroom at which point Mr Sheppard applied for, and was granted, an order under Section 23 of the Evidence Act. It required Kevin Pamba to produce to the court, for inspection by it, the affidavit referred to in the front-page story in The National, that the complainant had earlier been asked about.

The complainant was shown exhibit F, an affidavit in her name dated 28 October 2004. She said that she made the statement voluntarily and it contains the truth and nothing but the truth. It was not written by the police. It was written by her of her own free will. She was not forced to sign it. She was not put under any pressure by police officer Adam Yawing.

Oscar reported the matter to Adam Yawing. She also reported it. After the incident, Oscar left her at her aunt’s place at Kina Beach. Annette Kora told her that she should go to Lae. She agreed to do this because she was afraid of James Yali and his people. Oscar caught up with Adam Yawing and told him what had happened.

When she came back from Lae to Madang she stayed at Madang Tech. Adam Yawing came to see her there. Oscar brought him and then they went to his home. This was about a week after the incident. The matter was not reported to the police until after she came back from Lae.

It was put to her that Adam Yawing attempted to get some money out of Mr Yali and his people, to drop the case. She said that she would not know anything about that.

Mr Sheppard referred to paragraph 5 of her affidavit of 28 October 2004 (exhibit F). She states that on the morning of 13 October 2004 she was on her way to school when James Yali offered to give her a lift. It continues:

... Feeling reluctant to get on the vehicle with him, I made up a story that I was going to meet up with my girlfriend. However, he insisted so I got on the vehicle and he dropped me off at the school.

It was pointed out to her that when she gave her oral evidence in examination-in-chief she had not said anything about making up a story. She replied that it is true that she made up a story and told the accused that she was going to meet up with her girlfriend.

It was pointed out to her that in her oral evidence she had mentioned coming home from softball training with Junior Diop. But Junior Diop is not mentioned in her affidavit to the police. It could therefore be concluded that she had made up this story. She denied making up any story. Three boys walked her home, as she stated in her oral evidence.

The following paragraph of her affidavit was then pointed out to her:

To my disappointment, he [James Yali] arrived at 8pm. I could see that he was drunk at that time and was accompanied by his driver Masbut and two other men believed to be highlanders. I told my brother Oscar that I was not going because I had studies to do. He told Mr Yali and he said, "lusim em istap" and they left.

She was asked how she could possibly know that the accused was drunk when she was in the kitchen. She replied that she could work it out from the way he was behaving. In addition, the fact that he came back the second time. She denied making up the allegation that the accused was drunk. She said that she was not making up stories. When he came back the second time, about fifteen minutes after his first visit, she was out of the house, near the tank.

It was put to her, however, that in examination-in-chief she had said that she did not come out of the house, but now she is suddenly changing her story. The complainant did not answer that question.

It was put to her that in examination-in-chief she stated that on the way past Madang Resort she had banged the side of the vehicle, but in her written statement to the police there was no mention of that. It was suggested to her that she had made it up. She replied that she did not make it up. She hit the side of the vehicle.

She was referred to paragraph 12 of her affidavit. It refers to the accused driving the vehicle into Smugglers Inn, with her on the back:

He came back after ten (10) minutes and he insisted that I sit inside the cabin with him but I refused. He implied that he was carrying K2.00 kina meri. I then replied and said "na yu save karim K2.00 kina meri raun ya".

It was put to her that this was smart-talk – not the sort of thing that a person would say if she had been abducted by the other person. The complainant did not answer that question immediately but when pressed that she was not actually frightened at all, she replied that it was not smart-talk. The accused carries ladies around in his car often, she said.

Mr Sheppard then asked the complainant about when she left the house. She had earlier given evidence that she locked the door to the house. It was put to her that that was a lie. She replied that it is not a lie. The accused told her to go back to the house and lock the door.

It was put to her that nobody forced her to get on the vehicle and that she got on of her own free will. She denied that. She said that if she ran away, James Yali would have killed her brother.

The complainant was referred to the part of her affidavit (exhibit F) in which she stated that the accused put his hand on her lap. It was put to her that her oral evidence was different. In her oral evidence she said he put his hand on her lap twice. In her affidavit it was only mentioned once. The complainant replied that she did not say "once" in the written statement.

She was asked about her claim that she punched the windscreen. She said yes, that was correct, how could she just sit there and let him touch her?

She was asked again about the second time they went to the provincial government offices. Mr Sheppard asked where on a scale of one to ten she would put her level of fright. She said she was very frightened. ‘If you were a lady, how would you feel?’ she said.

She said that there were passers-by present. She called out to them but the accused told her to shut up. He also wound up the windows in the car.

She conceded that she had not put anything in her written statement about people walking past from the crusade.

She was asked why she had not called out to the police. She replied that the accused told her not to talk back and that he grabbed her and carried her into his office.

He told her to sit down and wait for him. He did not make a threat to her at that point.

She struggled with him but he threw her down.

She said that he scratched her but this may not have been clear because she does not have light skin.

It was put to her that there were no injuries whatsoever described in the medical reports. She replied that she would not know about that. She had not seen the reports. They had been locked up. She said she suffered a scratch on the right hand side of the face. She would not answer questions about any genital injuries. They would best be answered by the doctor, she said.

She was referred to the final paragraph of her affidavit (exhibit F), which stated:

... I am a young girl with a bright future. However, one, James Yali had tarnished that bright future of mine.

Mr Sheppard asked if she was referring to the loss of her virginity. She replied, yes. When pressed as to whether she was a virgin prior to the incident of 13 October 2004 she said that this was not the first time the accused had tried something like this. There were other incidents that took place in the Madang Butchery house involving James Yali. He took her elder sister and her elder brother to Smugglers Inn, left them there and came back. That was the second incident that happened and this incident now before the court is the third. When they went to the hospital and her sister asked the doctors to check her, James Yali said there was no need for it.

Mr Sheppard put it to her that it was really impossible to expect anybody to believe anything that she would say. There was no answer to that question.

Mr Sheppard referred her to paragraph 20 of her affidavit of 28 October 2004 (exhibit F), where she stated:

He laid me down on the floor and he locked the door. Then he ordered me to ring my elder sister, Elizabeth who is his second wife. I told him that my elder sister is in the Island and that I can’t get in touch with her.

It was put to her that this statement contradicted her examination-in-chief as she had said that the accused laid her down on the couch. This was her big chance to clear up this confusion, Mr Sheppard said. There was no answer to that question.

She was referred to paragraph 23 of the affidavit of 28 October 2004 (exhibit F), where she stated:

He wanted to kiss me but I resisted him and was not cooperating with him. Then he pulled my shirt up and removed my sports bra and was sucking my breast. The next thing he did was that, he removed my short, tights and my under wear. He also removed his trousers and was completely naked in front of me.

It was put to her, and she agreed, that a sports bra does not have any clip at the back. Therefore, getting it off by pulling it over her head or sliding it off would be quite a hard task for anybody else. She would have had to assist the accused in doing that. She replied no, she did not assist him.

It was put to her that none of her clothes were torn as a result of the incident. She offered no answer to that question.

It was also put to her that she had shorts and sports tights on and they would have been hugging her body. So she had three layers of clothing on and this would have made it very difficult for the accused or anybody else to forcibly remove those items of clothing. She replied that he was locking her knees.

It was put to her that her affidavit was inconsistent with her examination-in-chief as there was no mention in her affidavit of crying out for help. Mr Sheppard asked her why her story to the police was so different to the story that she told to the court. There was no reply to that question.

She was asked whether it was true that she had punched the accused twice. She replied yes, but conceded there was no mention of that in her affidavit (exhibit F).

Mr Sheppard suggested to the complainant that she had made too many different statements for the court to be able to believe any one of them. She replied that she was not lying.

Mr Sheppard asked her questions about exhibit G. This is the affidavit of 13 December 2004 that Kevin Pamba produced to the court pursuant to an order under the Evidence Act. She said yes, she signed it. She was referred to the last page where the commissioner for oaths was shown as "A Amet, Jr". She was asked whether she swore the statement before Arnold Amet Jnr. She replied no, she has never met him. She was referred to paragraph 5 of this affidavit, which states:

At the time when I signed the Statement of October 28th 2004, I was not aware of the full contents of the Statement and I was not permitted to peruse this Statement before actually signing the terms as suggested by the Statement of October 28th 2004.

She responded that exhibit G was not her statement. She signed it but did not prepare it. She had been taken to Kauris and hidden there. The accused came to see her there with Alois Kingsley and Elizabeth. The accused was waiting in the car. Oscar was not with her. Elizabeth told her that she would get all the pain and blame if she did not sign the document. Arnold Amet Jnr was not there and she never met him at any stage. She signed that document under threat knowing that something bad would happen if she did not sign it. She was forced to sign the document as other people were threatening Elizabeth.

Mr Sheppard put it to her that she is saying that all of the paperwork she now says she does not agree with, was prepared by somebody else. But the material that she does agree with, she is willing to adopt it. Therefore the court could not possibly believe anything she is saying. The complainant replied that she agreed with what was stated in her affidavit of 28 October 2004, exhibit F.

Her attention was drawn to paragraph 80 of her affidavit of 13 December 2004 (exhibit G), which states:

The Police despite my first letter to them dated 28th of October 2004, which is on the same day I had signed the Statement presented to me by the Police, continued to insist and issue threats that I must not withdraw and must co-operate with the Police.

She repeated that that was not her statement. She conceded, however, signing a withdrawal letter to the police dated 28 October 2004. She said that she did not want to sign it. Nor did she want to sign the letter to Mr Yali asking for K50,000.00. She said that she signed those letters but did not write them.

She was asked questions about Kauris village. She said that her brother, Brian, married a lady from that village and that is where Brian lives. She was asked why she would be afraid of anything if she was staying at Kauris in the protection of Brian. She insisted that she had not signed the affidavit of 13 December 2004 (exhibit G) voluntarily.

Mr Sheppard put it to her that her change in statements was all part of the extortion plan and that her act of sexual intercourse with the accused was entirely consensual. She denied that.

It was put to her that there were many opportunities to run away from the accused on the night of 13 October 2004 and the reason that she didn’t is that he was not forcing her to be with him. She denied that.

Her attention was drawn again to her affidavit of 13 December 2004 (exhibit G). It was put to her that she had actually spent four hours conversing with Arnold Amet Jnr at Jais Aben Resort in relation to that document. She denied that. She denied reading the document before she signed it. She said that she remembers signing the document at Kauris when she was staying at Brian’s house.

Mr Sheppard then asked more questions about the night of 13 October 2004. After they left the provincial government offices, they went back to the Madang Butchery house? Yes, she replied. Who opened the gate? The accused. He opened both the gate and the house and carried her into the house, through the kitchen, then to the living room and then to another room. She had left the house key on the dashboard of the car. During the time that she was out, there were two boys locked in the house. They are not small. The accused told her to lock the door so she locked it.

She was asked again about the incident at the Madang provincial government offices. In her earlier evidence she said that the accused had threatened to kill her brother. It was put to her that this was silly as her brother was at Madang Resort. Furthermore, if she had run to the police they would have been able to protect him immediately. So it was obvious that even if the accused did say that, it was not a real threat. She declined to answer that question.

It was put to her there were at least eight occasions when she could have run off. She denied that. It was put to her again that the reasons she was giving for not running away – that the accused threatened her brother – are preposterous because the police would have protected him easily and she could have run away. There was a long pause before the complainant answered but eventually she did. If she had gone to the police station, she would still have been worried about her brother Oscar as he was with the accused’s driver. Something similar had happened in Port Moresby. Oscar was taken to Lamana Hotel and later to Six Mile and bashed up and left there to find his own way back home.

It was put to her again that it would have been very easy for the police to protect Oscar. There was another long pause before she answered the question. She replied that the accused could do anything. He had done it in Port Moresby and she believed he could do it again.

It was put to her that she could not really expect the court to believe that she had been raped because someone had threatened her brother and because it was so easy for her to have run away. The police station was only a short distance away from the office where the incident took place. She could have run down there. Her story was too fanciful to believe. It was put to her that is why she had difficulty answering many of the questions. She said no to the last question.

That completed the cross-examination of the complainant, however it was later reopened. A summary of the further cross-examination is given below, after the summary of re-examination.

In re-examination the complainant, Olivia Daniels, said that she is an in-law to the accused, James Yali. The accused is married to her elder sister Elizabeth. He bought a house where Elizabeth lived and she lived there with Elizabeth and Oscar.

She was asked about the two documents dated 28 October 2004: her police affidavit (exhibit F) and the withdrawal letter from the Daniels family to the OIC, CID (exhibit H). She said that exhibit H was a document that she did not read. It was produced to her one night when she was staying at Madang Tech. Elizabeth gave it to her to sign. She said that this was the document she had described earlier as the document Elizabeth gave to her at Madang Tech.

Her attention was drawn to paragraph 2 of exhibit H, which states:

We view this complaint to be without basis both in law and in principle.

She said that she does not understand what those words mean. She was a grade 10 student at Tusbab Secondary School at the time and the school did not run courses in law. There was no lawyer with her when she signed the document. She was staying at Mr Owen’s residence.

It was pointed out to her that there were three other signatures on the document. They were in the following names: Daniels Jnr; Brian Daniels; and Mrs Daniels. She said that these other members of the family were not with her when she signed the document.

She said that on 28 October 2004 she had spoken to the investigating police officer, Mr Yalamu. She does not understand about the police hierarchy. She has never spoken to the news media about the allegations. She does not know how to.

She was asked questions about her family. She said that her father is deceased and her mother is not working. Oscar and Elizabeth are also not working.

She does not have a computer and does not know how to type on a computer. She is not sure whether Oscar knows how to use a computer.

The complainant said that she had been taken to Kauris village by the accused’s people. They took her there to hide her from the police. She was removed from Madang for that reason. She said that Mr Yalamu was going to take her to the crime scene and take photographs. They took her and put her there so that the police could not do any investigation.

The night before the day the photographs were taken at the crime scene, she was removed from Madang Tech and taken to Lae. The Landcruiser was driven by Elizabeth. Danny, one of James Yali’s men, was also there. They first went to the Madang Butchery house. During dinner Elizabeth received a call through her mobile phone. Elizabeth told her to get into the car. James Yali’s ten-seater vehicle was also there. They went to Kalibobo and then to the house at Madang Tech. She thought that they would drop her off there. But they told her to just get some clothes. She did as she was told. She did not tell anyone she was leaving. She got the things that she needed. They then drove off. They came to where the Modilon junction is. The accused’s 10-seater was at the back of them. When they got back to the Madang Butchery house James Yali told them to change vehicles. She was told to get into the 10-seater. Joe Pecks was driving it. Joe Parker took her from the Landcruiser to the 10-seater. She was told that they would be going to Lae. She was told that her mother would go with her. So her mother came along.

They were dropped off at her aunt’s house in Chinatown, Lae. The next day one of the accused’s men, Wilfred, was sent to keep an eye on them. Her aunt told him that the police were looking for some people taken out from Madang town.

Mr Sheppard objected to the complainant giving evidence about the circumstances in which she went to Lae for the second time. The line of questioning did not relate to anything that arose in cross-examination and the prosecutor is introducing a batch of new evidence, he submitted. The objection was overruled.

In Lae, she and her mother later went to Sigit Yali’s place. Sigit is James Yali’s brother. They were there on the Saturday that Makoma [an overseas music group] performed. Joe Pecks, Joe Parker, James Yali Jnr and Michael Kasi visited them with a letter to sign, addressed to Garry Baki.

Mr Sheppard objected to that document being tendered during re-examination. It and other documents were not produced to the defence at the time of the committal proceedings. These documents show that the complainant wrote to the police on more than one occasion, withdrawing the charge. They are directly relevant to the defence the accused was entitled to make at the committal. The accused was aware of them and asked for them at committal. But they remained in the prosecution’s possession and were not made available to the defence. This appeared to be a miscarriage of justice. The accused was not given the full protection of the law at the committal stage. Procedural errors have been made and it is difficult for this to now be a fair trial, he submitted.

Mr Sheppard indicated that the accused’s defence would be that the complainant and her family were engaged in extortion, clearly evidenced by the sequence of events. There was an allegation made against the accused; then a letter of demand was issued to him; a few days later there was a letter of withdrawal of the complaint. If the accused had had the Garry Baki document during the committal proceedings, his case would have been a lot stronger. The prosecutor should be ordered to produce it. It should have been produced a long time ago. He now wanted to tender it in an unjust, unconstitutional and grossly improper way. Mr Sheppard said he was going to ask the court for an order against the prosecutor. He was considering making an application for the trial to be aborted on account of the conduct of the prosecutor, who is running the trial as though he can spring ambushes and surprise the defence. That is a grave misunderstanding of the prosecutor’s role, Mr Sheppard submitted.

The prosecutor, Mr Miviri replied that the complainant’s letter to Garry Baki was not a new document.

Upon hearing those submissions I ruled that the document be admitted into evidence as exhibit I. Mr Sheppard did not proceed with an application to abort the trial.

Mr Miviri then referred the complainant to her seven-page affidavit of 13 December 2004 (exhibit G). She said that she did not sit down with Arnold Amet Jnr to prepare it. No other lawyer assisted her in preparing it. She did not read it. It was produced to her at Kauris. It was in the night-time when Elizabeth came with the accused and Alois Kingsley. The accused did not speak to her on this occasion. He was standing some distance away. She did not see him clearly as it was in the night. She was not given a copy of this document.

She was asked again about the time that she said that she spent at Jais Aben. She said that Masbut drove the accused’s 10-seater from Lae to Madang. Others in the vehicle were her mother; Brian; and Wilfred. They first went to Kalibobo and called for Angela and then drove to Jais Aben. It was early in the morning when they arrived in Madang, about 3:00 am. They got a room at Jais Aben and dropped her there. Wilfred got the key from the reception. Wilfred is one of James Yali’s boys. He is always with him. Wilfred told her that he paid for the room, for two nights. While she was at Jais Aben, she was asked to sign the handwritten document, exhibit D. She was given a document from which to copy. Joe Parker told her to copy everything in her own handwriting and not to miss anything.

Joe Parker lives with the accused at Kalibobo. He works in the provincial government. She used to see him sitting at one of the desks near the governor’s office. It was at the night-time that Joe Parker gave her the document to write out. Wilfred was also there. James Yali’s wife, Angela, was outside. They told her to copy everything down word for word. While she did that they were watching television. She understood what she was copying but it was not true. In particular paragraph 3, which states that Constable Adam Yawing threatened her and forced her to sign the police statement, was not true. After she wrote out the document (exhibit D) she was not given a copy.

She said that she does not know Kevin Pamba and has never spoken to him. She never gave him a copy of her affidavit of 13 December 2004 (exhibit G).

That completed the complainant’s re-examination.

Mr Sheppard was then granted leave to re-open the cross-examination of the complainant. She was asked about exhibit H, the letter from the Daniels to the OIC, CID, dated 28 October 2004. It withdraws the complaint against Hon James Yali. She said that she did not write it. She conceded that her signature was on the letter but maintained that she did not write it. She was told to sign it.

It was put to her that she had been caught telling a dreadful lie. She replied that she had signed it on the same day she had signed the police statement (exhibit F). This was the day after her exams.

She was asked again about the letter of demand for K50,000.00 (exhibit E). ‘What do you think happens when you sign documents?’ Mr Sheppard asked. She replied that she did not write the documents, she only signed them. She never demanded K50,000.00.

She again denied writing exhibit H. Elizabeth had told her if she did not sign it she, Elizabeth, would get all the pain.

Mr Sheppard referred to paragraph 3 of exhibit H, which states:

The reasons behind the formal withdrawal of the complaint is personal which need not be mentioned here.

Mr Sheppard put it to her that it was the extortion attempt that were the ‘personal reasons’. She replied, again, that she did not write it.

Mr Sheppard then asked her about her letter to the Deputy Commissioner of Operations, Garry Baki, dated 12 November 2004 (exhibit I). It also withdrew the complaint against James Yali. She said she never asked for the complaint to be withdrawn. But yes, she signed the letter.

Her attention was drawn to paragraph 2, which states:

Police officers from Madang who are aligned to Political enemies of Mr Yali in collaboration with people who were dismissed from the Provincial public service by Mr Yali for their own ends forced me under threat of imprisonment of myself to sign a statement prepared elsewhere by themselves without interviewing me to the effect that I was raped by Mr Yali in his office in Madang.

She replied that paragraph 2 was not true. She had been interviewed by a female police officer, Jenny. She was not threatened by the police. The letter was taken to her by James Yali Jnr, Michael Kasi, Joe Pecks who drove the car and Joe Parker. She said they were living in the settlement at that time, in Lae. She did not write it. She only signed it.

Mr Sheppard asked her if she had signed any other letters or statements withdrawing the charge, that the court did not know about. She replied that all the papers are here.

That completed the reopened cross-examination of the complainant, however it was reopened again on day No 9 of the trial, 21 November 2005. The further cross-examination is summarised below, after the summary of the evidence of the sixteenth witness, Rose Yawing.

The second witness for the State was Alphonse Yohang.

In examination-in-chief he stated that he works with the Department of Transport in Port Moresby. In 2003 he had relatives staying with him, Oscar and Olivia Daniels. He adopted an affidavit he swore (exhibit J) relating to an incident in 2003. He said that Olivia sustained a scratch on her head.

In cross-examination Alphonse Yohang said that he did not see any incident in which Olivia Daniels was allegedly injured.

There was no re-examination of Alphonse Yohang.

That ended Alphonse Yohang’s evidence.

The third witness for the State was Helen Daniels.

In examination-in-chief she stated that she is the complainant’s mother. She has five children whose dates of birth are as follows:

1 Elizabeth: 25.05.73

2 Brian: 29.07.75

3 Oscar Junior: 05.01.85

4 Olivia: 23.07.87

5 Isaac: 23.05.89

At the time of the incident, 13 October 2004, she was at her village, M’Bunai, in Manus Province, attending a bride-price payment for her younger sister. She sent Elizabeth to town to buy some food. When Elizabeth was in town she rang Madang to check on Oscar and Olivia.

Elizabeth returned from town the same day and told her what she had heard about Olivia. Upon hearing the news she cried for her small daughter. Word got around and family members came and comforted her. She told Elizabeth that she should return to Madang.
On 24 October 2004 the accused was in Manus. He was picked up at the Loniu bridge. Her brother, Kisikau Polaiap, went in the boat to the bridge. She stayed at M’Bunai. Polaiap returned with two other boys and with them were James Yali and one of his bodyguards, Wilfred. There were also four police personnel. They went to Polaiap’s house where there were some uncles and aunts to speak to James Yali to find whether the story they had heard was true. They brought some food and finished it and then James Yali spoke.

James said the allegation about what happened in Madang was not true and he did not rape Olivia. It was done by some boys.

She asked the accused why he had done something like that to Olivia as he is married to Elizabeth. She broke down in tears. James said that he had come to Manus to take Elizabeth back as he had bought a car and a house for her. Her relatives told him that Elizabeth would not go back yet but that she would go ahead as Olivia was due to sit for exams and her mother should be there.

She got on to the boat to Loniu bridge. There was a hire-car waiting at the wharf. They got into the car and James Yali drove the vehicle. They went to the hotel in town, the Harbourside Hotel. Two rooms had been booked. James looked worried as he said that Oscar had already reported the matter to the police. Elizabeth told him not to worry as Oscar did not report it and that they could go back to Madang and sort it out. However, Elizabeth told her that she was frightened.

The next day, Monday 25 October 2004, she flew to Madang with James Yali and Wilfred. When they arrived, the Landcruiser registration No MAC-989 was at the airport waiting for them. She was taken to Kauris village where her son Brian lives with a woman from that village to whom he is married.

The next day, 26 October 2004, Wilfred drove the vehicle MAC-989 to Kauris to pick her up and take her to Tusbab High School, where she met Olivia. She saw Olivia again on Wednesday 27 October and Thursday 28 October.

On 28 October she was asked to attend a meeting at Smugglers Inn with James Yali’s staff. She went there. Present were James Yali’s First Secretary Michael Kasi, Masbut and Emile and some men from the village who she did not know. There was also a man from Manam who she was told was a church representative. Also present were a police officer, Mr Yawing, and her son Brian. James Yali was not present.

Michael Kasi said: ‘Mama, the reason for us meeting is to talk to you about the incident that has happened. James Yali has sent us and there is some money to pay for his shameful act. You know PNG custom. If anyone does anything wrong he pays for his wrongdoing. James Yali is offering K10,000.00 to pay for his shameful actions. At the moment I have K5,000.00 with me ready to give to you. Another K5,000.00 part-payment will be given to you later, with a pig and some foodstuff. James also has K20,000.00 to put into Olivia’s account for compensation.’

She told Michael Kasi and the others that she did not believe them as this was not the first time something like this had happened. There was a previous incident in Port Moresby when Olivia had jumped from a car and was injured on the right side of her face and her body.

Michael Kasi said that James Yali will not pay but he will pay as he is in charge of the money. The incident in Port Moresby was not reported to the police, so James had not paid any money. But for this incident there will be some money.

She said that for a long time they sat there and did not talk. Then Masbut said that they are troublemakers and they have to pay some compensation for what they have done wrong. She said that she did not give them an answer for a long time. She just sat quietly. Then they took a break. She and Brian and Mr Yawing went off for lunch. They went to Tusbab where they met Daniel Kapen, the officer-in-charge of Ileg Police Station. He agreed to go back to the Smugglers Inn with them.

They resumed the meeting and Michael Kasi and his people told her the same thing. They had K5,000.00 ready to pay.

She did not call for the meeting. It was arranged for them and they had sent a vehicle to pick her up.

Masbut said that it was Madang custom that compensation should be paid as James was married to her daughter and he did that to another of her daughters.

She could not recall whether Adam Yawing said anything. She was told that Oscar had reported the matter to the police. Olivia was sitting for her exams at the time. Olivia and Oscar were not at the meeting and nobody asked for them. There was no lawyer present. Daniel Kapen did not say anything. She did not make a counter offer. She told Michael Kasi that she was very worried for her small girl. If anybody does that in Manus custom she would want to kill him. If she had a gun she would go and kill him because of the love for her children. She told him that she will leave it in the hands of the good Lord and only He would do justice.

The meeting did not reach any agreement so they said that they would meet on a later date. However, they never met again.

A few days later, on Sunday 31 October 2004, she came in to town from Kauris to visit Oscar who was at Kusbau, and Olivia, who was at Madang Tech. She saw the two of them at the Redscar bus stop.

Michael Kasi drove past and told her to get into the vehicle and he would drop her off. She got in and they drove past Redscar and arrived at the place where Tumbuna Track is. He gave her an orange envelope containing some money. He told her that it was a few toea for her bus fare and food. She put it in her basket and took it with her to Kauris. She put the basket in the room and waited for Brian to come so that he could witness the amount that was in the envelope. When Brian came she took out the money and they counted it. There was K5,000.00 in K50.00 notes.

She later took the money to Olivia and Oscar and showed it to them. She did not tell the police about it. She was afraid that they might do something bad to them. Adam Yawing was the only one who knew about the money as she told him when Olivia was with him.

Before she distributed the money, she saw Olivia who told her that the K5,000.00 was given to her to cover for the shameful act that was committed. She told Olivia that they would pay another K20,000.00 into her account. But Olivia said that she would not get that money as the pain she felt inside would last for her lifetime. Olivia said she wanted the case to go to court so that justice would be done. She left Oscar and Olivia and returned to Kauris.

The next day, Monday, Elizabeth returned from Manus with two of her uncles. She showed Elizabeth the money. She said that the payment was to be made to the family so she would distribute the money to each of them as payment for the shameful action of James Yali. So she shared the money amongst her children. She told Elizabeth about the meeting at Smugglers Inn and about the other K20,000.00 that would be paid into Olivia’s account.

She gave the following amounts of cash:

Elizabeth K 2,000.00

Brian K 1,000.00

Oscar K 100.00

Olivia K 100.00

Robert K 50.00

David K 50.00

Herself K 1,000.00

Later that day Elizabeth gave her and the others a letter and asked them to sign it. Elizabeth told them that if they did not sign it, James Yali would assault her. The witness said that she recalled an earlier incident in which James Yali had assaulted Elizabeth. She was concerned that he might do the same again. The document was a withdrawal letter addressed to the OIC, CID, Madang (exhibit H). She signed the letter during the night, about 7.00 pm. At the time she was at Tusbab. She went there to look for Oscar and Olivia. Elizabeth told them all to sign it underneath Mr Owen’s house. She did not understand the letter. However they signed it and Elizabeth took it and left. She does not know who produced or drafted it. She was not given a copy.

She and Elizabeth later took the letter to Senior Sergeant Steven Yalamu at Madang Police Station. After that they returned to the house at the back of Madang Butchery. Then a number of people came to the house to visit. They were:

James Yali

Angela Yali

Michael Kasi

Masbut

Michael Ururu

Michael Ururu’s wife

James Yali Junior

They came inside the house and sat down. They presented two documents. One was a letter of demand for K50,000.00. She had no idea about this beforehand. Michael Kasi said that this is about the compensation. He said that James Yali is offering K50,000.00 so that this was a letter of agreement. James Yali’s group wanted them to sign it. She told Elizabeth she would not sign it as she was not the author of the document. Elizabeth said they should sign it for their own safety, as her life was in danger. So she signed it, gave it to Brian and he signed it. Michael Kasi said that Olivia and Oscar should also sign, but they were not present.

So Elizabeth went to look for them at Madang Tech. The vehicle, registration No MAC-979, was given to Elizabeth. She drove to Madang Tech and returned about five minutes later.

Then they gave them an A4 envelope and in it was exactly K25,000.00. She counted the money in the presence of James Yali’s people.

After giving them the money they left. She told Elizabeth that she had not asked for this money and asked her what they would do with it. Elizabeth said they should deposit it into a bank account. So she and Elizabeth deposited the money in the bank.

On Monday 8 November 2004 James Yali rang up and told her and Elizabeth to go to his residence at Kalibobo. She went there with Elizabeth and Olivia and a couple of others. She and Olivia stayed in the car. Elizabeth went inside and then came back and told them to go into the house. They went upstairs. A group of people sat around the table. She was sitting opposite James Yali and next to Angela Yali. Also present were Michael Kasi, Masbut and Emile. James Yali said that he would like to send Olivia to some other place with her. James Yali said words to the effect, ‘if I go down, all of you will go down as well’. He had said the same thing at the Harbourside Hotel in Manus. He was talking harshly on both occasions. James Yali told the witness that she and Olivia will go to Lae.

They were then taken back to the Madang Butchery house. About five minutes later, three vehicles came. James Yali gave the key to his ten-seater to Joe Pecks, who drove her and Olivia and a few others to Lae. They did not know where they would be staying in Lae.

She and Olivia stayed in Lae and returned to Madang at the beginning of December 2004.

In cross-examination Helen Daniels said that she at one stage rang the Director of Police Prosecutions, Mr Eluh. She wanted to talk to him as she did not trust the police in Madang. Thomas Eluh had spoken to her in Madang but she was afraid to talk to him then. She was afraid that someone would report her to James Yali’s group. After she had seen Olivia’s affidavit she felt sorry for her child. She wanted to come out with the truth.

She acknowledged signing a statement that mixed up the birth dates of her children. She has never conducted a search of any registry regarding Olivia’s date of birth. She was shown a copy of Olivia’s birth certificate (exhibit M).

She was asked about the receipt of the initial K5,000.00 and about the evidence she gave about distribution of that money. She had disclosed how K4,300.00 was distributed. She was K700.00 short. She said it was used to buy food when they were dispatched to Lae to live with Sigit Yali, James Yali’s brother. After that money was finished she used K500.00 from the K1,000.00 she had allocated to herself and used it to buy food.

After the incident of 13 October 2004 Olivia and Oscar had gone to live with family friends, Mr Diop and Mr Owen. It was put to her, therefore, that they were not acting under any compulsion by James Yali or his family. She replied that Oscar and Olivia should be asked that question.

She admitted signing the letter of demand for K50,000.00, exhibit E. She did not prepare the document. She signed it as she felt she had no choice. Elizabeth pleaded with her to sign it. Elizabeth said something bad might happen to her. None of the four of them who signed the document wanted to sign it.

She was shown a letter from the Daniels family to the OIC, CID at Madang, exhibit H. She said that they also did not want to sign that document.

She was asked further questions about the receipt of the K5,000.00. She said that she had told Mr Yawing about this and he advised her to keep it. It was only right, under PNG custom, that James Yali paid it as he had done that thing to her youngest daughter.

Mr Sheppard put it to her that the next K25,000.00 was way beyond what was justified by custom. She replied that sometimes it can go beyond K25,000.00 especially if there are pigs or food involved. She did not ask for the money. They came with the money. She did not write the letter of demand. She does not have a computer. She signed as she was worried about Elizabeth. If Elizabeth dies she will not be able to buy a new Elizabeth from the store. She did not tell the police about the receipt of the K25,000.00. There are some police officers who would have told James Yali. Then something would happen to them. Some police officers were on James Yali’s side. They were afraid of what would happen.

Mr Sheppard asked her if she were afraid all the way to the bank, as she had deposited the money into an account at the ANZ Bank Madang. She replied no police officer knew about it. If the police knew about it she would not be here now.

There was no re-examination of Helen Daniels.

That ended Helen Daniels’s evidence.

The fourth witness for the State was Oscar Daniels Junior.

He recalls the afternoon of 13 October 2004 when he was sitting at the house at the back of Madang Butchery. James Yali came in his white Landcruiser, with red stripes on the side. James told him that he would take him to dinner at the governors’ conference that night. James left, then returned with three others including Masbut, and told him and Olivia to get on the vehicle with them. Olivia said that she had some homework to do so she stayed back.

He got onto the vehicle and went to Madang Resort. They went to the place where the food is prepared and James told him to go and join the que to get food. He got some food and went to sit down at the table. He noticed that James was not there. He asked Masbut where he had gone. Masbut said that James would return later. They finished their food and he waited for a long time.

James had not returned, so he went outside, then went back to the Madang Butchery house. He asked his friend, Johnson, who was sitting outside, about Olivia’s whereabouts. Johnson said that James had picked her up and taken her to Madang Resort. So he told Johnson to go with him and check for them.

They went to Madang Resort by which time the conference had ended and people were coming out. He met Masbut there and asked if James had been back. Masbut said no, so he and Johnson walked back to the house.

When they got to the house, James’ vehicle was there. It was parked at the front of the door to the house. The lights were switched off. He met Sheila and Teddy who were outside and asked them where Olivia was. They told him to ask James. He walked into the house. James was on the phone. He asked for Olivia but James did not respond. When he asked a second time James said she was asleep.

James told him to get into the vehicle and they would go to his house and get some meat. They did that. James went inside. He stayed in the vehicle. Then they drove to Smugglers Inn. He stayed in the vehicle again and waited for an hour or so while James was inside.

Then they returned to the Madang Butchery house and he was dropped off at the gate. Sheila, Teddy and Johnson were outside. He asked again about Olivia. They told him she was asleep and to go inside and check on her. He went into Olivia’s room and saw her lying on the bed. She did not look well. Her shirt and trousers were inside-out. Her hair was messed up. She looked weak. She was crying. He asked her what was wrong. She said James Yali had done something bad to her: "James bagarapim mi". When she said that he knew what had happened.

He told her to stay there and he would try to get an ambulance. He and Johnson went to the phone booth but there was no response. He returned to the house and told Olivia that she would have to wait until the morning. Teddy said that in the morning he would get a company vehicle and take her to the hospital.

The next morning he went to Kusbau and told Junior Diop what James Yali had done to Olivia. He also told Robert Galadia and he gave them some money to take Olivia to the hospital. He and Junior Diop returned to the house. Teddy came with the vehicle. They picked up Olivia and went to the hospital. He and Junior Diop got onto the bus. When they got to the hospital, Sheila and another friend, Tia, took Olivia inside. Olivia was examined by the doctor.

After the medical check, Olivia told them she did not feel safe going back to the house. So he and Junior Diop took her to Kina Beach and left her at Annette’s sister’s house.

He and Junior Diop went back to the hospital and were told that the medical report would be ready that afternoon. They went back to Olivia and told her that they would return in the night and check on her.

That night he, Junior Diop and Robert went back. Olivia said she did not want to stay there so they took her to Kusbau. They rang Annette in Port Moresby who had arranged a bus to pick up Olivia and take her to Lae.

The next day was Friday 15 October. He and Junior Diop put Olivia on the bus to go to Lae. Then they went to the hospital and picked up the medical report. They left it with Robert who works at the ANZ Bank. The report was locked up in a safe. They went back to the house and were told that a provincial government vehicle had come to check on them while they were away.

Olivia returned from Lae, just before her exams started.

He and Olivia wanted to report the matter to the police but they were afraid. However, a police officer by the name of Yawing heard of the incident and asked to see him. So he walked up to Yawing’s house at Kusbau and relayed to him what had happened. He told Yawing that Olivia was in Lae. He told him that they wanted to report the matter to the police but they were afraid. Yawing told him not to be afraid. Yawing said he would arrange to go to Lae to pick up Olivia. Then he told Yawing that, in fact, Olivia was in Madang. Yawing told him to see him the next morning.

The next day Yawing went to a house where Olivia was hiding and asked her if she wanted to report the matter to the police. Olivia said yes, so Yawing told her to write her statement. This was about one day after Olivia had returned from Lae.

Mr Miviri asked further questions about the night of 13 October 2004. He said that when he returned from Madang Resort the lights were off both inside and outside. This was not normal as usually the security lights are switched on in the night. The lights in the living room are also usually switched on. Normally James Yali does not park his vehicle close to the house in the way that he did that night. He usually parks outside the gate.

Asked about the withdrawal letter to the OIC, CID, Madang, (exhibit H) he said he did not prepare any statement about withdrawing the allegations. He recognised exhibit H but said he did not read it before he signed it. He signed it at Madang Tech underneath Mr Owen’s house. They had already laid a complaint to the police and wanted the law to deal with the matter. Elizabeth and Brian took the document to him to sign. Olivia was with him. He and Olivia did not want to sign it. He was angry and did not read it. It was just given to him and he signed it. He was angry because he wanted the law to deal with the case.

He did not demand K50,000.00 from James Yali. However, he did sign the letter of demand for K50,000.00 (exhibit E). He signed it at Madang Tech, at the same place he signed the withdrawal letter (exhibit H). Elizabeth brought it to him to sign. He cannot recall the date. It was in the morning. Elizabeth was accompanied by Brian, their mother and Wilfred. Wilfred is one of James Yali’s boys. It was not his intention to demand K50,000.00 from James Yali.

In cross-examination it was put to Oscar Daniels Junior that the court had heard previously from Olivia and Helen Daniels that the letter of demand was signed in the Madang Butchery house, but he was saying Madang Tech. He replied that he could recall two documents being brought to him at Madang Tech.

Mr Sheppard put to him that if he really wanted the law to deal with the matter: why didn’t he take Olivia to the police on 14 October 2004, the day after the incident? And why did he send Olivia to Lae? He replied that he was afraid as James Yali is a big man and if he heard about the complaint he might hurt them. He said it was just himself and Olivia and there was no one to support them.

It was put to him that his intentions were not genuine as when he got the medical report he took it to the bank rather than the police. He said they did that as the matter had not been reported to the police at that time.

Mr Sheppard put to him that he was only taking his time to take the matter to the police, to give himself time to concoct a way of squeezing money out of James Yali. Oscar Daniels Junior replied that they later took a copy of the statement to the police.

He admitted signing the letter of demand but denied writing it. He did not read it before signing it. He wanted the police to carry out their investigations. By the date of that letter, 26 October 2004, the matter had already been reported to the police. The letter was brought to him and Olivia by Elizabeth, who said that if they did not sign it James might do something bad. He understands the letter now.

He also admitted signing the letter from the Daniels family to the OIC, CID, Madang, (exhibit H). He did not want to sign it but Elizabeth told them to sign it for their own and her safety.

He knows that the family received K30,000.00 cash. The money was brought to them and given to them. He did not want to get it. Asked why he didn’t just give it back, he said that he did not put his hands on the money. Their mother got the money. However, when it was put to him that his mother had said that she gave him some money, he recalled that he did get some but was not sure whether it was part of the K30,000.00.

He confirmed that his evidence was that when he came back to the Madang Butchery house the lights were off both outside and inside. Asked how he could say that Olivia’s clothes were inside-out, he said that he did not go straight in. He went away with James in his vehicle then when he returned the lights were on. Then he went inside and saw Olivia.

In re-examination Oscar Daniels Junior stated that from the time he left the house, after coming back from Madang Resort the second time, to the time he was dropped off by James Yali, it was about an hour.

That ended Oscar Junior Daniels’ evidence.

The fifth witness for the State was Elizabeth Daniels.

In examination-in-chief she stated that from 1998 to 2003 she had a relationship with Peter Kauwi. In April 2003 she was working with Airlink. She went on leave. She was asked by the Governor’s office to run a computer course with the staff. The course did not eventuate as the Governor, James Yali, asked her to be his girlfriend. Things got personal and she did not complete the training. She is no longer with James Yali.

On 13 October 2004 she was in Manus with her mother, Helen Daniels. A few days later she went to Lorengau and rang up Madang to check on Olivia and Oscar. She heard something about Olivia. She called James Yali’s office and spoke to him about 2.00 pm that day. She asked him if it was true that he raped Olivia. He denied it and said he would not do that.

She rang Olivia in Lae. Olivia was crying and said it was true. Elizabeth told Olivia that she would come to Madang and sort things out. She rang back James Yali and put to him that Olivia had said that he had raped her and he again denied it.

She was angry and emotional, put the phone down and went back to her village at M’Bunai. She told her mother and her uncles what she had heard. She told her mother that she would go back to town on Friday as Olivia had said that she wanted to come back to Madang as she did not want to miss out on her exams.

She went to Lorengau again on the Friday and rang James Yali’s office. Joe Parker told her that he was not there. He had gone to town and she should call back. She called back about 11.45 am but he was still not there.

She then went to Lorengau market and saw Robert, an employee of the ANZ Bank, Madang. Robert said that he had come on a flight with James Yali and Wilfred. Then she saw Wilfred at the market. Wilfred saw her and said that James would like to see her.

She spoke to James for about 10 minutes. She was angry with him. She asked how he could do such a thing. He said that nothing had happened. But she did not believe him. James said that he was in Manus on the invitation of the Governor of Manus to discuss a fishing project. James said that he had not told Elizabeth earlier as he thought that she would be angry. She asked him again if he had raped Olivia and he said no, he would not do that. Then James and Wilfred dropped her off at Loniu bridge.

On the Sunday morning of that weekend James and Wilfred came to the village. They had a meeting with her uncles and cousins at an uncle’s house. Her uncles wanted to hear from him if it was true that he had raped Olivia. He said no, some boys did it. He said he wanted to take Elizabeth back to Madang. He did not identify the boys who he claimed raped Olivia. After about 20 or 25 minutes three police officers in uniform carrying guns approached the village and asked for her.

Later that day they all went to the Harbourside Hotel in Lorengau. She spoke to James again at the hotel. James said that Angela was no longer cross with her.

The next day, a Monday, James went back to Madang with her mother and Wilfred.

She, Elizabeth, returned the following week, on 1 November 2004. She went to her house at the back of Madang Butchery. She was in the house with her mother when James and Angela visited. James said that he would give some money to compensate for the shameful thing he had done.

At that point Mr Sheppard made an application that the court should not hear further evidence from Elizabeth Daniels on the ground that she was the wife of the accused and under Section 13(2) of the Evidence Act she could not give evidence unless the accused consented; and the accused did not consent. I gave an oral ruling on the afternoon of day No 5 of the trial, 14 November 2005, refusing the application. After giving the oral ruling I heard additional argument. Then I delivered a written ruling on the morning of 15 November 2005, which has been published as The State v James Yali (2005) N2931, again refusing the application.

Then Mr Sheppard made another application that Elizabeth Daniels’ evidence no longer be heard, based on another provision of the Evidence Act, Section 14(1). He submitted that, as Elizabeth had been charged with various offences in connexion with James Yali’s trial, she is prohibited from giving evidence in the trial. I heard submissions from both counsel then delivered a written ruling, refusing the application, on the morning of day No 7 of the trial, 16 November 2005. That ruling has since been published as The State v James Yali (2005) N2932.

After those two rulings Elizabeth Daniels’ examination-in-chief continued. She adopted an affidavit sworn on 18 April 2005 (exhibit K). She confirmed that James Yali had said that he would give some money because of the shameful thing that he had done. What he had done was a shame for the family and it was right, under PNG custom, that he should pay some money.

She did not demand any money. But some money was paid and she believed that it came from James Yali and his family. The money was handed over at her residence at the back of Madang Butchery. It was K25,000.00 in cash. Mrs Angela Yali handed over the money in the presence of James Yali and his sister and her husband, ie Markom Ururu and Mr Ururu. There were other relatives present but she does not know their names. On the Daniels’ side there was herself, her mother Helen; her brother Brian; her uncle Robert; and her cousin David. Oscar and Olivia were not present.

At the time the K25,000.00 was paid, James Yali asked her and her family members to sign a letter confirming that the money has been received from them. This was the letter of demand for K50,000.00 (exhibit E). He talked about K25,000.00 being paid and the balance being paid after the case was withdrawn. She does not know who wrote the letter of demand. She did not write it herself. It was dated 26 October 2004. She was in Manus at the time. She arrived in Madang on 1 November 2004. She did not sign it as her name was not on it. Oscar’s name is shown as "Mr Daniels Jounior"[sic]. That is not the way her family writes his name.

James Yali gave her the letter of demand and asked her to give it to Olivia and Oscar to sign before any money could be paid. She did not sign the letter herself as her name was not on it.

She took it to Olivia and Oscar to sign. They were at their friends’ place at Madang Technical College, with Mr and Mrs Owen. She went straight from the Madang Butchery house to Madang Tech. Olivia and Oscar at first refused to sign. They had already reported the matter to the police, who were investigating. Olivia said that money could not replace what happened to her. She was distressed and crying. Oscar was angry: ‘You were not here and these things happened’ he said. She told them what James Yali had said to her: if he goes down everyone else goes down. She was his second wife so she had to submit to what he said. She had to follow what he said. She got the letter signed by Olivia and Oscar, then went back to the Madang Butchery house. Nothing happened to Olivia and Oscar after the exchange of the K25,000.00.

After the letter of demand was signed and the money was received, Olivia went to Lae in a 10-seater vehicle belonging to James Yali. Joe Pecks drove. He is one of James’ relatives. James Yali was at his house in Kalibobo. The vehicle picked up Olivia at the Madang Butchery house. Olivia went with their mother and their uncle, Robert, and some others. It was late at night, about 11.00 pm or 12.00 midnight.

Olivia and their mother went to Lae following a meeting at James Yali’s residence. James asked them to go for a meeting as there were too many police putting pressure on Olivia. He wanted Olivia and her mother taken away for a week or two. Then they could come back. He told her that she must help him as if he goes down, they would all go down. The tone of his voice was normal when he said that.

She does not recall when her mother and Olivia returned as she was by then in Beon Gaol.

In cross-examination Elizabeth Daniels stated that she had been in prison for more than six months in connection with this case already. She was in Bomana for six months and Beon for 17 days. She was shown a handwritten document, exhibit L, which she identified as something she wrote when she was in Bomana.

She was offered immunity from prosecution for being a State witness. But it has not been processed yet. She has not been threatened with prosecution if she does not testify as a State witness.

Mr Sheppard then showed her the letter of demand, exhibit E. She confirmed that she was present when her mother, Helen Daniels, signed it. She was also present when her brother, Brian Daniels, signed it. She was present when her brother, Oscar Daniels Junior, signed it. She asked him to sign it. Some of the money was used to pay his school fees. She also asked Olivia to sign it. Olivia benefited from it. She did not, however, threaten her family.

Mr Sheppard then showed her the letter dated 28 October 2004 from the Daniels family to the OIC, CID, Madang (exhibit H). She has seen the letter before. She was present when Olivia signed it. She did not make any threat to Olivia at the time. She was present when Oscar signed the letter. She did not issue him any threat either. She was not present when her brother Brian signed it. She did not make any threat to Brian. She was present when her mother, Helen Daniels, signed it. She did not make any threat to her mother.

She was shown a document signed by Olivia, undated, which refutes the rape allegations, (exhibit D). She said that she had not seen it before. She is familiar with Olivia’s handwriting.

She was shown another document signed by Olivia, an affidavit dated 13 December 2004 (exhibit G). This also refutes the rape allegations. She is familiar with this document. She took it to Olivia to sign when Olivia was at Kauris village. She went there with James Yali and Alois Kingsley. She showed Olivia the document and asked her to sign it. Olivia did not want to sign it but she persuaded her to sign it.

Mr Sheppard put it to her that the payment of K25,000.00 was a direct response to the letter of demand. She denied this. Her family had not concocted the story of rape in order to get money out of James Yali. His payment of the money was an admission of his guilt.

She was asked about her affidavit of 18 April 2005 (exhibit K). She said she drafted it herself. She wrote down a draft and then typed it out. She can get the handwritten notes if necessary [but she did not present them].

She was referred to paragraph 23, which states:

There are instances where he beats me up using power cords, knives, computer cables, bashing me leaving me with broken lips, broken face, body being badly hurt and I couldn’t report all matters for fear of him doing anything to me or my family.

She said that she had not reported any of those matters to police, but said that the statement was correct.

She was referred to paragraph 32 of the affidavit which refers to the receipt of K5,000.00 from Michael Kasi. She was not present when that money was received.

Mr Sheppard referred to paragraph 34, which states:

We got the cash [K25,000.00] and had it deposited into two separate accounts. IBD and Access Account with ANZ Bank. This accepting of the cash was merely because we were scared that if we refused, something might happen to my family or me. Here, our security, safety is not guaranteed but back home – Manus we could be much safer.

Mr Sheppard put it to her that this showed that she and her family had blackmailed James Yali for him sleeping with her sister. She denied that it was blackmail. It was payment for the shameful things he had done to the family.

Mr Sheppard referred to paragraph 35, which states:

On November 6th 2004, my mother and I delivered a letter of withdrawal of the case that was drafted by James Yali and signed by my family members to Senior Sergeant Yalamu who was a/OIC CID at the Madang Town Police Station.

She confirmed that that letter had been delivered.

Mr Sheppard referred to paragraph 36 of the affidavit, which talks about the meeting at the Governor’s house at Kalibobo to discuss how Olivia could be removed out of Madang to Lae to prevent the police investigation going any further. She denied that Olivia and their mother had gone to Lae voluntarily.

Mr Sheppard suggested that that could not be true and it would have been easy for Olivia to go to the police. She replied that something bad might have happened to her (Elizabeth).

Paragraph 40 of her affidavit contains claims of intimidation and threats by James Yali and states that he gave her money through his officers to give to witnesses so they would deny what they said in their police statements. Mr Sheppard put it to her that that was not true. She replied that it was true.

As to paragraph 42, which contains further allegations of threats and beatings by James Yali against her, she said that only he and her were present when those things happened. Mr Sheppard suggested that there was no reason she should be believed.

Paragraph 62 claims that James Yali used her to bribe State witnesses and Mr Sheppard asked her why she had not given evidence before of these allegations. She conceded that she did not give evidence of many of these claims in her examination-in-chief. She said this was because the prosecutor did not ask her about those things. Nothing is made up, she said.

Mr Sheppard put it to her that she was making it all up to get immunity from prosecution. She denied that.

Mr Sheppard asked for the names of the State witnesses she bribed. She replied that she gave money to a number of people who were likely to be witnesses, including Sheila Baim, Johnson John and Sammy Tinpidu. Manu Larry and Teddy Morris were not in the province, so they missed out. She gave the money as that is what James Yali told her to do.

She was shown Olivia’s birth certificate, apparently issued by Vunapope Health Centre. She has seen it before. In fact she was the one who obtained it. She got a blank form faxed to her from Vunapope and filled in the details, including the date of birth. The document was tendered through her and admitted into evidence as exhibit M.

In re-examination Elizabeth Daniels stated that she had received the birth certificate form on a fax machine in the Governor’s office. This was on or about 25 February 2005. James Yali was in a meeting when the fax came in. She filled in the particulars, including the date of birth.

Mr Miviri showed her Olivia’s affidavit of 13 December 2004, exhibit G. She confirmed that she had taken that document to Olivia at Kauris. She was accompanied by James Yali and Alois Kingsley. She does not know who prepared the document. James Yali had told her to take the document to Olivia to sign. James Yali did not go into the house when she went in to locate Olivia. There was no lawyer present.

Mr Miviri showed Elizabeth Daniels the letter from the Daniels to the OIC, CID, Madang, dated 28 October 2004, exhibit H. James Yali gave her that letter to get it signed. He did that at his office. She does not know who the author of the letter was. She was in Manus on that date. She persuaded Olivia and Oscar to sign the letter. She told them if they don’t help James Yali and he goes down, they all go down.

That ended Elizabeth Daniels’ evidence.

The sixth witness was Constable Adam Yawing.

In examination-in-chief he stated that he has been a police officer for 13 years.

On 22 October 2004 he was at his house at Tusbab Secondary School. At lunchtime his wife came home and told him something about an allegation of rape. He heard the story again about 7.30 pm that night. He heard that the source was Oscar Daniels, so he sent his wife to look for him. About 8.00 pm Oscar Daniels and Junior Diop came to the house.

He asked Oscar why the matter had not been reported to the police. Oscar replied that he was afraid and that he had sent Olivia away in fear. Oscar told him that he did not trust the police. He then started to make arrangements to get a vehicle to go to Lae to pick up Olivia Daniels. Then Oscar told him that Olivia was, in fact, in Madang.

The next day, Saturday 23 October 2004, Oscar came back with another witness, Johnson. He told them to write down what they knew. Then they went to the Diop family’s house at Kusbau. He saw Olivia there and interrogated her. She told him the story. He went to the police station and put the details in the occurrence book. It was recorded as No 370 of October 2004 at 12.25 pm. It was recorded as a rape incident involving Olivia Daniels and James Yali at the provincial government offices. He then came home and since then he has had little involvement in the case.

On Sunday 24 October 2004 he met with Det Snr Sgt Yalamu who came to his house after seeing the report in the occurrence book. He told Det Snr Sgt Yalamu where the complainant and the witnesses were and Det Snr Sgt Yalamu carried on from there.

On Thursday 28 October 2004 Helen Daniels and Brian Daniels asked him to go with them to Smugglers Inn where they had a meeting with Michael Kasi and Masbut. Michael Kasi and Masbut were talking about some compensation payment. He went for security reasons.

In cross-examination Adam Yawing stated that Helen Daniels was offered K5,000.00 at the Smugglers Inn meeting. He warned the people at the meeting at Smugglers Inn that the compensation payment could be regarded as interfering with witnesses.

When he had been first approached by Oscar, he did ask Oscar why he had not reported the matter to the police earlier. He did not ask why Olivia had not reported the matter to the police. Oscar told him that he had a medical report. He later got a copy of the medical report from the principal of Tusbab High School, not from the ANZ Bank.

He confirmed that the occurrence book records showed that the informant was Oscar Daniels. He gave the handwritten stories that Oscar and Johnson had prepared to Det Snr Sgt Yalamu.

Mr Sheppard showed Constable Yawing the letter of demand for K50,000.00, exhibit E. He said he had never seen it before. It had not occurred to him that Helen Daniels was blackmailing James Yali.

He confirmed receiving the complaint from Oscar Daniels on 23 October 2004, ten days after the incident. He confirmed attending the meeting at Smugglers Inn on 28 October 2004. He denied ever asking for any money for himself. He is from Morobe and the Daniels are from Manus.

The first time he saw the withdrawal letter from the Daniels family to the OIC, CID, Madang (exhibit H) was during the trial. He was not present when Mrs Daniels received the first K5,000.00. However, she informed him about it at his house. He told them that it was against the law. He agreed that it could be a serious offence but at that stage it had nothing to do with him.

Olivia prepared a handwritten statement but he did not read it. It went to Det Snr Sgt Yalamu.

He confirmed that Olivia and Oscar had asked him to put Oscar down as the informant and Olivia as the complainant.

In re-examination Constable Yawing said that the sum of K10,000.00 was mentioned at the meeting at Smugglers Inn and that the K5,000.00 would be paid upfront.

That ended First Constable Adam Yawing’s evidence.

The seventh witness for the State was Johnson John.

In examination-in-chief he said that on 13 October 2004 he was living at the back of Madang Butchery with his father. He was there and he saw James Yali come to get Junior and Olivia to take them to Madang Resort for a dinner. [This witness referred to the complainant’s brother, Oscar, (State witness No 4), as "Junior".] Olivia said she did not want to go, so James left with Junior.

He stayed with Olivia for a while, left and had dinner, then came back and saw James Yali’s vehicle parked at the gate. He stood there to see what he would do next. He saw him tell Olivia to get on the vehicle. She was scared but no one was around to support her so she got on to the back of the vehicle. And James drove out.

He waited for all of them to come back but James did not bring Junior back to the house. Junior walked back home. Junior enquired about Olivia and he, Johnson, told Junior that James had come and taken her to Madang Resort.

He then walked with Junior back to Madang Resort. They saw one of James Yali’s staff and asked him where James Yali was. He told them that he went out and did not return. It was Junior who asked.

They came back from Madang Resort to the house. Upon their arrival they saw that the gates were opened and a car was parked within the area of the house. They saw James Yali enter the house and switch off the lights. He took Olivia from the vehicle and dragged her into the house. He did that by opening the offside of the vehicle, holding her by the hand and pulling her into the house. Junior wanted to go into the house but James told him to get into the vehicle and they left.

Then Sheila and Teddy came. They told Sheila to go into the house. Sheila came out and he went inside with Teddy to see Olivia. She was lying face down on her bed, crying. They asked what happened but she refused to tell them. She was ashamed. They tried to help her but they were afraid of James Yali and did not want him to see them there so they came out of the house. James used to take Elly into the room and beat her up when he saw boys in the house. James is suspicious of boys being in the house.

[This witness referred to the complainant’s sister as "Elly" who, he said, was the governor’s wife.]

They waited for James Yali’s vehicle to return. It did not come back until a long time later.

He did not sleep that night. They tried to call an ambulance but there was no response.

At daybreak Teddy went to work and got a company vehicle. Then they took Olivia to the hospital. He waited outside.

He was then asked questions about more recent events. In March 2005 he was standing outside the house. Elly and James drove in. Elly came out of the vehicle and James drove away. Elly called him over and gave him K150.00. She told him that it was for his betel nut and smokes and that it was from James Yali.

In cross-examination Johnson John confirmed that when Elly gave him the K150.00 she told him it was to buy betel nut. So he spent it on betel nut.

As to the events of 13 October 2004 he said that when Olivia left with James Yali he was standing at the dartboard near the water tank at the back of the house. He was not locked inside. Manu was inside the house but he, Johnson, was outside.

He occupied the upstairs unit with his father. The Daniels were living downstairs.

Asked by Mr Sheppard about the circumstances in which Olivia got on the vehicle, Johnson John said that James Yali was not carrying any weapons. He just told Olivia to get on the vehicle, and she did. James insisted that she get in. He used words to force her to get into the vehicle. She got on to the back of the vehicle. James did not assault her.

Olivia did not lock the house. She left the lights on as Manu was inside. He, Johnson, did not go inside before James Yali came back. When Oscar came back he was still outside. He went with Oscar to Madang Resort in search of Olivia.

Mr Sheppard put to the witness that when Oscar Daniels Junior gave evidence about his arrival back at the house, he said that the gate was open and all the lights were off. Johnson John was asked whether he agreed and he replied yes, the lights outside were off. James came out and switched them on.

It was put to him that he did not see James Yali drag Olivia towards the house. He said he saw it. At that time the outside lights were on and the upstairs lights were on. Asked why Oscar had not said that in his evidence, he said that he was telling the court what he saw.

Teddy and Sheila were also present, outside the gate. Manu was sick in the bedroom lying down.

Johnson John said that he did not go into the house at that point in time. Sheila went into the house first to see Olivia. When Sheila came out, he and Teddy went in. Oscar was the last to go in and see Olivia, because when he and Oscar arrived at the gate, James Yali picked him up and went back. Nobody went in before James Yali left.

There was no re-examination of Johnson John.

That ended Johnson John’s evidence.

The eighth witness for the State was Manu (Emmanuel) Larry.

In examination-in-chief he stated that on 13 October 2004 he was staying at the house at the back of Madang Butchery which is owned by James Yali. He had some friends there, including Oscar Daniels. In the morning he was sick and sleeping in the house. He does not know what happened in the morning.

In the evening he was there at the house when James Yali came and picked up Olivia. He was in the kitchen. He saw Olivia get on the vehicle and James drive the vehicle away. Before that James had been sitting in the vehicle and Olivia was standing. James was arguing with her, telling her to get into the vehicle. This went on for 20 minutes or so.

He felt sick so he went back to sleep. He woke up in the night when he heard a noise like footsteps on the floor; like someone being dragged. He heard crying. It was weak crying. At that time Sammy Tinpidu was with him in the house. This was an hour or so after James had driven Olivia away. The lights in the house were off. He sat there quietly then opened the door and came outside. He opened the window and saw James Yali’s vehicle going past the house.

He went to the door, the door was locked, and the key was hanging on the doorknob. They opened the door and he and Sammy went outside. He still did not feel well so he came inside and lay down. Then Sammy came to see him. He was already asleep and he would not know what else happened.

When he saw the key on the doorknob the lights were on. Sammy switched them on. He does not know who else was in the house at that time. He and Sammy were there and they had gone to sleep.

There was no cross-examination of Manu Larry.

That ended Manu Larry’s evidence.

The ninth witness for the State was Sammy Tinpidu.

In examination-in-chief he stated that he was at his house at Kalibobo in Madang town on the night of 13 October 2004. He decided to go and visit Elly’s brother, Junior. This was around 8.00 pm. [This witness, like Johnson John, referred to Elizabeth Daniels as "Elly"; and Oscar Daniels Junior as "Junior".]

He walked from Kalibobo towards Madang Butchery and on the way he saw James Yali’s vehicle go past. Olivia was on the back. He called out to her and she turned around and waved at him.

He arrived at the Madang Butchery house. Manu Larry and Johnson John were there. He went into the house and got some water and the boys told him about James Yali coming to pick up Olivia. They watched movies and told stories and some hours later Junior returned from Madang Resort.

When Junior returned they told him that James Yali had taken Olivia away. Junior told Johnson to go with him to Madang Resort to check for the vehicle. They left, leaving himself and Manu in the house.

Not long after Junior and Johnson left, James Yali drove to the house. Then he turned at the gate, went back and returned later.

When the vehicle returned, James Yali himself opened the gate. He switched the outside lights off, went inside the house, returned and switched the lights on. He went outside and brought Olivia into the house. The lights inside the lounge room were off.

At that time the witness, Sammy Tinpidu, and Manu were in Junior’s room. They heard a woman crying and a man dragging her into the house. The window of the room was open and he could see James Yali dragging Olivia into the room. He was holding her around her shoulders from the back and pulling her. He left her in the room, returned, switched off the outside light and went outside. But he then returned and switched on the outside light again and went to his vehicle.

At that time Junior and Johnson had returned from their search. James Yali drove off but then stopped and picked up Junior and they drove away.

Sheila went into the room to check on Olivia. Olivia told her that she would have a bath. He went outside but heard Olivia crying. She was holding onto her side, feeling pain. After having her bath she came outside. She changed her clothes. Johnson and Junior tried to ring an ambulance. He felt sorry for her so he stayed there.

The next day Junior and Sheila took Olivia to the hospital.

The witness was then asked about events in January 2005. He said that Elly gave him K100.00 and told him that the money was from James Yali.

In cross-examination Mr Sheppard asked Sammy Tinpidu to confirm that he had seen Olivia on the back of James Yali’s vehicle. He said that he was walking towards the Madang Butchery house. He called out to Olivia who was in the back of the moving vehicle and she waved.

As to the events later that evening at the house, Sammy Tinpidu said that he was in Junior’s room, with Manu, when he saw James Yali dragging Olivia into the house. He saw the accused dragging her down the hallway. There is a window on the wall between the bedroom and the hallway. He could see clearly.

There was no re-examination of Sammy Tinpidu.

That ended Sammy Tinpidu’s evidence.

The tenth witness for the State was Sheila Baim.

In examination-in-chief she stated that on 13 October 2004 at about 5.00 pm she was at the Madang Butchery house with Olivia. They went to softball training at Tusbab field. After training she and Olivia and her boyfriend, Teddy Morris, returned to the house. She and Teddy left Olivia there. They went to Elwag Trading where they had some drinks.

About 10.00 pm they checked for Olivia at the house. They stayed at the gate, telling stories. They saw the Governor’s vehicle arrive. But then it turned around, went away, then returned about five minutes later.

The vehicle was parked in front of the house. The driver, James Yali, went inside and switched off the lights and then switched on the security lights. He came to the left-hand side of the car, opened the door, then held Olivia on her left-hand side and dragged her into the house. He left her on the bed and came back.

Johnson and Junior came and asked her about Olivia. She told Junior to go and check for Olivia. However, the Governor got Junior into the vehicle and they drove off.

She went into the house to see Olivia. She was in the room lying on the bed, crying, feeling pain. Olivia did not say anything to her. The witness, Sheila Baim, felt afraid so she left the room and came outside and stood with Johnson and Teddy at the gate. She sent the two of them inside to wake up Olivia.

Then Junior returned and they tried to organise an ambulance. They waited until daybreak. Teddy got a company vehicle in the morning and they took Olivia to the hospital. Olivia walked slowly to get into the vehicle.

The witness, Sheila Baim, was asked about an incident in January 2005. Elizabeth Daniels came to the house and spoke to her and Teddy. Elizabeth told them to change the statements they had given to the police regarding the incident. Elizabeth said they should change their stories so she could send Olivia and Junior to Goroka Grammar School. But they did not change their stories.

On another occasion Elizabeth called them to the house but they did not go. She eventually went to Elizabeth’s house and met her outside. Elizabeth gave her K100.00 to help her in-laws so that the statement could be changed and the case dropped. She did not want to get the money. She was afraid but because Elizabeth was persistent she got the money.

In cross-examination Sheila Baim said she is a friend of Elizabeth and Olivia. She is a good friend of Olivia. When she went to see Olivia in her room she was crying. But Olivia did not say anything.

The only time she saw James Yali was when he drove his vehicle in and assisted Olivia into the house.

She confirmed that when Elizabeth spoke to her earlier this year James Yali was not present, except on the second occasion which was at the Madang Butchery house. On that occasion James Yali was inside the house but Elizabeth spoke to her outside. James was not present when Elizabeth had the conversation with her.

There was no re-examination of Sheila Baim.

That ended Sheila Baim’s evidence.

The eleventh witness for the State was Senior Constable Daniel Kapen. He gave no oral testimony other than to adopt a statement he made on 10 November 2004 which was admitted into evidence as exhibit N.

That ended First Constable Daniel Kapen’s evidence.

The twelfth witness for the State was Teddy Morris.

In examination-in-chief he adopted a two-page statement he made on 24 October 2004 that was admitted into evidence as exhibit O.

He further stated that Elizabeth Daniels came to see him in January 2005 regarding the statement he had made. She told him to make changes to the statement and to lie to the court so that the court would drop the case.

In cross-examination Teddy Morris confirmed that James Yali was not present when Elizabeth Daniels spoke to him.

There was no re-examination of Teddy Morris.

That ended Teddy Morris’s evidence.

The thirteenth witness for the State was Dr Monica Clement.

In examination-in-chief Dr Clement adopted an affidavit sworn on 6 December 2004, which was admitted into evidence as exhibit P. Annexed to it was a four-page form entitled "Sexual Assault Medical Examination Record".

She examined Olivia Daniels on the afternoon of 14 October 2004. Olivia was in tears when she first saw her. She was sitting in a hunched position, sniffling. Her eyes were red and puffy. Her head was hanging down. She was not looking eye to eye with the doctor.

For the virginal examination Dr Clement asked her supervisor, Dr Geita, to be present. They explained that Dr Geita is a woman’s doctor, so Olivia should feel no shame. However, she was not responding. So Dr Geita left the room. Then, when Dr Clement asked her to undress, she willingly did so.

Dr Clement told her she would be inserting a medical instrument that would cause some discomfort. She put in the speculum and the patient cried out in pain "Em pein ia rausim hariap!" She observed that her vagina was full of semen, there was no hymen, and the vagina wall was red, as was the cervix. She told her to lie quietly while she took a swab, then it would be over.

Redness of the vagina and cervix in some cases is normal. However, it can be a sign of friction brought about by forced entry as there is insufficient time for the vagina to lubricate.

This looked to have been a case of forced entry, given her behaviour and condition. She clearly did not want Dr Geita or a male person around her.

In cross-examination Mr Sheppard referred Dr Clement to paragraph 6 of her affidavit, which states:

On examination, she was depressed, distressed and crying easily, evidence of a recent disastrous event. General examination of her body was normal. There were no bruises, lacerations or cuts on her body. She had her bath and changed clothes before she came to the Outpatient.

Dr Clement agreed with what was stated: there were no bruises, lacerations or cuts.

She was then referred to paragraph 7, which states:

Examination of her genitalia revealed vulva, perineum, mons veneris wet with white fluid. The vagina and fornices revealed plenty of white mucoid fluids. The cervix also had plenty of the same white mucoid fluid. The rectum was normal. A high vaginal smear and high vaginal swab were collected for semen test.

Mr Sheppard put it to her that after ten or so minutes semen loses its colour and becomes a clear, colourless liquid. So the white substance in this girl’s body may have been something else, perhaps a yeast infection. Dr Clement replied yes, possibly, but a yeast infection will be different.

Dr Clement stated that the complainant had told her that she had been raped the previous night. She said that she was a virgin prior to this incident.

Mr Sheppard then referred Dr Clement to page 1 of the Sexual Assault Medical Examination Record, which provides for a duplicate of the report to be given to the police. She said that in this case a duplicate was not given to the police. It was given to the patient’s brother, Oscar Daniels. She did not follow the normal procedure as Oscar had told the medical staff that they did not want the case dealt with by the police. She broke the protocol because they insisted.

Asked what the value of her report was given that she broke the protocol, Dr Clement replied that they said that they were scared for their lives. It was dealt with as a case of sexual assault as that is what the patient had told her. She noticed no scratches on her face or any lacerations or bruises near the entrance to the vagina. There were no contusions.

Mr Sheppard asked if she were familiar with the term fourchette [a thin fold of the skin at the back of the vulva]. She replied no.

Mr Sheppard put to Dr Clement that in almost every rape case the entrance to the vagina will exhibit some damage. Dr Clement replied no, not necessarily. In this case there was no damage, only redness and the presence of a white fluid.

Mr Sheppard suggested that the redness could have been caused by something other than forced entry, eg vaginitis in its initial stages, a chemical imbalance or foreign material or some bacteria in the vagina. These were possibilities to explain redness in the vagina, Dr Clement replied.

Mr Sheppard asked Dr Clement further questions about her suggestion that redness in the vagina could have been caused by friction brought about by lack of lubrication. Mr Sheppard suggested that the reluctance of the vagina to lubricate in a consensual act of sexual intercourse can be brought about by natural causes. Therefore if redness was caused by friction, it can be explained by the failure of the vagina to lubricate. Dr Clement said "possibly".

In re-examination Mr Miviri asked Dr Clement about the redness of the complainant’s vagina. Was this is a case of chemical imbalance? Dr Clement stated that the patient herself said she had been sexually assaulted. She had not presented as a normal outpatient. Her opinion was that of assault as she did not present as a normal outpatient complaining of a yeast infection or a chemical imbalance in the vagina.

As to lubrication, Dr Clement stated that during sexual excitement it is normal for the vagina, the mucus gland, to create mucus to lubricate the vagina to allow easy penetration by the penis. It makes it easier for the sperm to travel up the cervix. In this case, because of the way in which the patient presented herself, she must have undergone trauma. There was forced penetration. This suggested that the female was not ready to have sex. Her vagina was not ready for the penis. That might explain severe stress.

That ended Dr Clement’s evidence.

The fourteenth witness for the State was Dr Lahui Geita.

In examination-in-chief Dr Geita stated that he specialises in obstetrics and gynaecology, ie he deals with women’s problems. He has been a specialist medical officer for ten years.

He examined the patient Olivia Daniels. He adopted an affidavit he swore on 31 December 2004, which was admitted into evidence as exhibit Q.

In his opinion this was a case of sexual assault confirmed by semen analysis. The young lady came in during the morning. She was puffy-eyed. She was very upset when she saw him. She was so upset that she did not want his presence there. So Dr Clement had to conduct the clinical examination.

In cross-examination Dr Geita confirmed that the patient presented without bruises or scratches on her face or sides. The genitalia was uninjured. As to the contents of paragraph 5 of his affidavit, dealing with the details of examination of her genitalia, he confirmed that he was repeating there what had been told to him by Dr Clement. So he is not in a position to verify the results of the clinical examination.

He was asked about the procedure for handing the sexual assault medical examination record to the police. He said that this form is sometimes given to the patient or their representatives to give to the police. But it was not given to the police in this case.

He was asked about the lack of contusions. There was no bruising around the private parts. The only thing mentioned in Dr Clement’s affidavit is the presence of a wet and white fluid. She did not mention redness in her affidavit. Dr Geita agreed with that proposition. He also agreed that there is no mention of redness of the vagina in his affidavit. Doctors see things and record them. Here there was no record of redness.

Dr Geita agreed partly with Mr Sheppard’s proposition that after 10 to 15 minutes semen becomes colourless. It loses its white colour and becomes a mucoid liquid, ie it liquefies.

It was put to Dr Geita that when Dr Clement recorded the presence of a white fluid it may well have been something other than semen. Dr Geita replied that it could have been normal vaginal secretions, but it was unlikely to have been a sign of yeast infection or the early stages of vaginitis. However, he said that in this case the swab test that was done on 14 October 2004 confirmed the presence of semen.

Mr Sheppard asked Dr Geita about the term "fourchette", the entrance to the vagina. It was put to Dr Geita that in most rape cases damage to the fourchette would be expected due to forcible penetration. Dr Geita replied that sometimes this would be the case. He said it depends on the person and the particular woman. Some women experience trauma.

Mr Sheppard suggested to Dr Geita that if a patient were truly a virgin there would be rupturing of the hymen. Dr Geita replied that this was not necessarily the case. The presence or absence of the hymen is not decisive. He agreed with the proposition, however, that in a rape case bruising would almost invariably be expected. There was no such evidence in this case.

Olivia Daniels received antibiotics and was administered a morning-after pill.

There was no re-examination of Dr Geita.

That ended Dr Lahui Geita’s evidence.

The fifteenth witness for the State was First Constable Jenny Ariku.

In examination-in-chief she stated that she is attached to the Sexual Offences Squad at Madang Police Station. On 24 October 2004 she was on duty, as was Snr Sgt Steven Yalamu who gave her instructions to obtain a statement from Olivia Daniels. She interviewed Olivia who looked very sad and was crying. She voluntarily gave a statement. She told her that James Yali had raped her in the provincial government building.

After the interview First Constable Ariku typed the statement. Olivia read it and satisfied herself that it was correct. She took the statement, in affidavit form, to the District Court the next day. That was the only affidavit she obtained from Olivia.

In cross-examination First Constable Ariku said that Olivia handed her a handwritten document when she came to the police station. Olivia signed the document in her presence. This document was subsequently admitted into evidence as exhibit S. It is a hand-written document in blue ink. Some of the words and sentences have been crossed out in black ink. First Constable Ariku said that she crossed out some parts of the hand written statement herself. All the black interlineations were done in her office.

In re-examination First Constable Ariku said that Olivia did not want some of the things to remain in her written statement.

That ended First Constable Jenny Ariku’s evidence.

Mr Sheppard then applied for the recall of Olivia Daniels to the witness box. He submitted that the defence should have had exhibit S in the first place. It is another completely different statement and it has been altered. The defence should have had it before the trial started.

Mr Miviri responded that he also had not seen the document before and conceded that the complainant should be recalled to the witness box. The application was granted. The further cross-examination of Olivia Daniels is summarised below.

The sixteenth witness for the State was Rose Yawing.

In examination-in-chief she stated that she is a teacher at Tusbab Secondary School. She was at the school in October 2004. She knows Olivia Daniels as Olivia was a student. She described her as an outgoing but vulnerable person. She was a consistent student who enjoyed school and was a happy person.

Olivia did not come to school on 14 October 2004. She was away for a whole week. She, Rose Yawing, asked the class patron as to Olivia’s whereabouts. She asked the students and they said that Olivia was in Lae. It was not normal for her to be absent in that manner.

She did not come back to school until the national examinations commenced. She and her husband asked for her whereabouts and her brother, Junior, told them that Olivia was in Lae. She then went to see the school principal who was willing to assist.

Then Junior Daniels said that, in fact, Olivia was not in Lae. She was in Madang. So Olivia came in and did her exams.

She supervised the class and was worried that Olivia might be too upset to do the exams. She provided some reassurance for Olivia. She does not know how Olivia fared in the exams.

There was no cross-examination of Rose Yawing.

That ended Rose Yawing’s evidence.

The complainant, Olivia Daniels, was then recalled to the witness box. She was shown exhibit S, which had been admitted into evidence during the oral testimony of First Constable Jenny Ariku.

The complainant said that she recognised the document and her signature was on the document in black. She wrote the statement and handed it to First Constable Ariku on 24 October 2004. There were some things she had left out. She used her black biro to make some corrections. Before she went to the police station she had written out the statement herself. No one threatened her.

Mr Sheppard read from parts of the statement that were crossed out but still legible. These parts stated:

... [He got hold of my head and banged it against the dashboard of car. I could not say how many times because I blacked out.

I regained conscious at home around 10.00 pm when my brother came home. I could not recall how I got home but could feel that some things happened to me during the period of unconsciousness. Also when I woke up I realised that my legs were fitted into one hole of the shorts and I still had my slippers on which was unusual. I also noticed that my underwears were wet. That same night I mentioned the ordeal to my brother and went for medical check up the next day. The examination was done by Dr Clement at Modilon General Hospital. I am holding on to a copy of the medical cert.

The complainant said it was true she wrote that but it is not what happened. Because the police officer was a lady she was prepared to say exactly what happened.

Mr Sheppard asked the complainant where she wrote the statement and she said that she wrote it in the house. She did not make it up. It was put to her that she had made more statements than a bank manager and that she had just made every thing up. The complainant denied that.

Her attention was drawn to her undated affidavit in which she denied the rape allegations, exhibit D. She said that exhibit D was prepared for her by James Yali. She just copied out what was written for her already. She copied it out at Jais Aben.

Continuing her re-examination, the complainant replied to Mr Miviri that she felt comfortable when she made the statement to a policewoman. After she gave the statement and made some changes to it, First Constable Ariku gave her a typewritten statement to sign. Mr Yawing took her to the District Court to sign the affidavit.

That ended the complainant’s evidence. She was not recalled to the witness box.

The seventeenth witness for the State was John Koito Bananga.

In examination-in-chief he stated that he used to work at the Madang Provincial Government as a cleaner. He was living at the provincial government offices in October 2004. He gave a story to the police about what happened one night in October 2004.

It was on a Wednesday. He does not recall the date. He was asleep and wanted to drink water. He went to the tap and drank water. Then he heard a woman crying "Aio Mama!". He saw the Governor’s vehicle and went back inside. The crying was coming from the side of the building that faces the police station. He just heard the woman cry out once. Then he went back inside. It sounded as if someone was fighting. He went back inside on a previous occasion when he heard people fighting. He tried to stop them but they stoned him. He didn’t want that to happen again.

The vehicle he saw was the Governor’s vehicle, a white Landcruiser with red stripes. It was parked at the entrance to the doorway of the Governor’s office.

He is no longer working in the provincial government. He was sacked in January 2005 and now he is in the village. A new Administrator for Madang was appointed and terminated his employment. He does not know why. The police interviewed him about a week after the incident.

In cross-examination John Koita Bananga stated he had to come into the court today after being picked up by police helicopter at the river in the morning.

He confirmed that he only heard the woman cried "Aio Mama!". He did not see anybody. It was in the night-time.

There was no re-examination of John Koita Bananga.

That ended John Koita Bananga’s evidence.

The eighteenth and final witness for the State was Detective Senior Sergeant Steven Yalamu.

In examination-in-chief Det Snr Sgt Yalamu stated that he had been an officer in the Criminal Investigation Division for 18 years. He conducts investigations into both major and minor crimes. He is the investigator for this case.

He started investigating it on 24 October 2004. He learned from the occurrence book that a rape had been committed. He proceeded to the residence at the back of Madang Butchery and asked the tenants for the prosecutrix and the witnesses living at the house. He was told that the prosecutrix and her brother had left the place. So he went to Tusbab High School. He located Constable Yawing and asked him about the whereabouts of the victim and her brother. Constable Yawing led him to Kusbau Primary School where Olivia and her brother were staying.

He introduced himself to them and invited them to come with him to the police station. Olivia and Oscar handed him their written statements. He went through the statements to ensure that what was written was true and correct. Then he referred Olivia to Policewoman Jenny Ariku and he talked to Junior Daniels.

Det Snr Sgt Yalamu was shown Olivia Daniels’ handwritten statement, exhibit S. He said that he had seen it before at the CID office. He instructed First Constable Ariku to talk to Olivia Daniels to ensure that what was written down in her statement was true and correct. It was an allegation of rape. He wanted to ensure that what was not in the statement should also be mentioned.

Detective Senior Sergeant Yalamu was shown exhibit G, the affidavit by Olivia Daniels dated 13 December 2004. He first saw that document on 14 December 2004. It was shown to him by Police Station Commander Jimmy Namora. When he got that document he kept it in another file. He does not know who prepared it. He spoke to Olivia Daniels about exhibit G in Manus. He was instructed to conduct further investigations into this affidavit. Olivia denied writing this affidavit. It was from Arnold Amet Jr and the accused.

He was asked about the letter of demand for K50,000.00, exhibit E. He did not know anything about that document. He had never seen it before.

As to the letter from the Daniels family to the OIC, CID, dated 28 October 2004, exhibit H, he first saw it on 6 November 2004 at the CID office in Madang. Elizabeth Daniels handed it to him. He read it, then asked to talk to Olivia and Oscar. Olivia and her relatives came to the CID office but he could not see them then as he had an urgent meeting to attend at Madang Resort. He did not talk to them after that.

He is aware of the letter from Olivia Daniels to Deputy Commissioner Baki dated 12 November 2004, exhibit I. He first saw it on 24 November 2004 at the CID office, Madang. He kept a copy in his file. The PSC gave it to him. He made further enquiries regarding this letter in Manus, in accordance with instructions.

He asked Olivia about exhibit I. She said she was in Lae when Michael Kasi and others brought the letter to her to sign.

He conducted further investigations surrounding the documents and talked to the complainant and her immediate relatives and created an investigation file. Then it was decided to arrest and charge the accused. They invited him to come to an interview at the CID office and he attended.

In cross-examination Mr Sheppard took Det Snr Sgt Yalamu to the letter of demand for K50,000.00, exhibit E. He confirmed that the day he was giving evidence in court was the first time he had seen that document. He was asked whether, if he had seen that document in October 2004, it would give him cause for serious concern. He replied no, no concern at all. Even though a letter might have surfaced, in which the complainant was demanding K50,000.00, he would not have been concerned.

Det Snr Sgt Yalamu agreed with Mr Sheppard’s proposition that extortion and blackmail are illegal. As a police officer he would be concerned about such things. He agreed that it seemed to be a classic blackmail but maintained that he was not concerned about it. He agreed it does, now, give him cause for concern. But he maintained that he has no enormous doubt on the complainant’s credibility.

Det Snr Sgt Yalamu was shown exhibit D, Olivia Daniels’ undated handwritten document refuting the rape allegations. He had not seen that document before. Mr Sheppard referred to paragraph 7 of that document which states:

I again wrote a letter to Deputy Commissioner Operations Mr Garry Baki dated 12th November 2004 and in the letter I clearly stated that the allegation of rape of myself by Hon James Yali was made up and false and that the complain be withdrawn against Hon James Yali.

Det Snr Sgt Yalamu said that he was not concerned that the complainant would say such things in an affidavit.

He was then shown the letter from Olivia Daniels to Deputy Commissioner Baki dated 12 November 2004, exhibit I. This letter begins:

I wish to bring to your attention about a made up allegation of rape of myself by the Governor of Madang, James Yali, who is married to my big sister.

Police officers from Madang who are aligned to Political enemies of Mr Yali in collaboration with people who were dismissed from the Provincial public service by Mr Yali for their own ends forced me under threat of imprisonment of myself to sign a statement prepared elsewhere by themselves without interviewing me to the effect that I was raped by Mr Yali in his office in Madang.

He has seen that letter before. It gave him cause for concern. But it did not cause him to doubt the veracity of the allegations.

He was shown Olivia Daniels’ handwritten statement given to First Constable Ariku (exhibit S). He saw it on 24 October 2004. Some bits and pieces had been altered. He was not a handwriting expert but it did appear that the handwriting in this document (exhibit S) and another handwritten statement by Olivia Daniels (exhibit D) were different.

He agreed that after Olivia Daniels was interviewed by First Constable Ariku, she made a different statement to the statement that she had first come into the police station with. He agreed that she changed it.

First Constable Ariku did not see Oscar Daniels the day that Olivia first came in.

Det Snr Sgt Yalamu said that he had spoken to Olivia Daniels in August 2005 in Manus. He raised with her the documents that were refuting the rape allegations. Olivia told him Michael Kasi gave her the letter to Deputy Commissioner Baki (exhibit I) to sign.

He did not know until he went to Manus that the complainant’s mother, Helen Daniels, had received some cash. He did not agree that the fact that money was received by the complainant’s family threw new light on his attitude to the investigation. He was quite sure about that. It shed no new light on the investigation.

Mr Sheppard put to him that he was out to get Yali at all costs. He replied yes. He was asked whether he was prepared to get Yali even to the extent of getting the eye-in-the-sky police helicopter to locate a witness and bring him into court. He replied yes but denied burning down any houses in the witness’s village, as alleged by Mr Sheppard.

Det Snr Sgt Yalamu said he was not prepared to tell lies in order to get James Yali at all costs.

Mr Sheppard asked why the court should believe a single word he had to say. He replied that his investigation was correct and true and that nothing would get him to change his mind, not even statements that the complainant was engaged in consensual sex, that there was a letter of demand, that some money was paid and that her original story is completely different from what she is now telling the court.

In re-examination Det Snr Sgt Yalamu repeated that his investigation was correct and true. When he conducted the investigation he collected evidence and interviewed witnesses. He concluded that there was sufficient evidence to arrest and charge the accused. His aim was to ensure that there were no lies and nothing false was brought to the court and that everything that comes to the court is true.

That ended Det Snr Sgt Steven Yalamu’s evidence.

The State then closed its case.

NO-CASE SUBMISSION

Immediately after the State closed its case the defence counsel made a no-case submission, arguing that the evidence was tainted and unreliable and insufficient as a matter of law to warrant the accused being asked to answer the charges.

It was held that the accused had raised legitimate concerns about statements made by the principal investigator and it appears that the manner in which certain documents surfaced during the trial was unsatisfactory. However, it did not follow that the whole of the evidence was tainted. Even though there was an argument that the evidence is weak, unreliable and inconsistent, a reasonable tribunal of fact could nevertheless base a conviction on it. There was sufficient evidence based on which the court ought to convict the accused. Furthermore, there was more than a scintilla of evidence. Accordingly, the no-case submission was refused and the trial ordered to proceed in relation to the four charges the subject of the indictment. The ruling on the no-case submission is reported as The State v James Yali (2005) N2935.

THE DEFENCE CASE

The defence case consisted of the sworn evidence of the accused, who was subject to cross-examination and re-examination.

In examination-in-chief the accused, James Yali, stated he has been the Member for Rai Coast and Governor of Madang Province since the 2002 general election.

On the morning of 13 October 2004 he drove to the back of Madang Butchery where Elizabeth and her family were living. He owns that residence. He was accommodating Elizabeth, who was his second wife or de facto wife. He went there around 7.15 am to 7.30 am. He asked Oscar and Olivia to attend a dinner that night which he had organised as part of the National Governors’ Conference. Each of them was quite happy to come to the dinner.

He then drove Olivia to school at Tusbab High School. He often drove Olivia to school.

He had had a personal, intimate relationship with Olivia for about two years. When he was dropping her off at school she agreed that he could take her out that night for dinner or somewhere.

He next saw Olivia around 7.30 pm to 8.30 pm that night at the Madang Butchery house. He was driving his Landcruiser utility with red stripes. He went to the residence to pick up Olivia and Oscar to take them out for dinner as planned. However, Olivia advised Oscar that he should go ahead as she had homework to do.

He was not drunk. He does not ever drink heavily. He was coming to pick up Olivia in accordance with the plan that she had agreed to earlier that day. She told him to drop off Oscar first at Madang Resort, then come back and pick her up. He said to Oscar that that would be okay, so Oscar went with him to Madang Resort.

He got a table and told them to join the queue. They were having a buffet. Then he returned to pick up Olivia.

He parked the car outside the gate and asked Olivia to come. She was inside the house. She came out and got into the car. Olivia locked the door, then locked the gate and took the key with her. He stayed in the car at all times. He did not see anyone else inside the fence or the house. He told Olivia ‘I have come to pick you up’. He did not offer any threat or violence or use any weapon in order to get Olivia to come with him. Olivia said nothing to indicate that she might have been frightened. Nobody forced her to get into the vehicle. She got in herself.

He reversed out and took the back road towards Madang Resort, then followed the beachfront road past the country club. On the way he saw Sammy Tinpidu who waved at Olivia. He was driving fast at that time.

Mr Sheppard asked if he could recall Olivia hitting the side of the vehicle. He replied that that would not be true. He did not recall anything like that. He did not hear her shouting.

After following the beachside road they reached the junction next to Smugglers Inn. He slowed to give way. He did not notice Olivia trying to get out of the vehicle. She was sitting close to him on the tray of the utility.

He turned left and slowed down again to go into Smugglers Inn. He estimates he was doing 40 kilometres to 50 kilometres per hour. He drove into the hotel premises where there are electric gates. He slowed again. Olivia did not call out. He drove past the main reception area and parked. Because of the governors’ conference all the hotels in Madang town were full. There were a lot of people there. He left Olivia in the tray and went into the Dolphin wing to meet Paias Wingti and Peter Yama. He was there for about an hour. When he concluded that meeting Olivia was still there, sitting in the tray.

He told her to get into the cab of the vehicle. He said if she stays in the back, people might think she was a prostitute. She replied that he was the one who carries 2-kinas [prostitutes] around. She asked why he was taking so long. However, she got into the offsider’s seat as he requested. He got into the driver’s seat and drove out, past the security guards.

He turned left to go towards the Madang provincial government offices. He parked around the back of the building outside the back door to his office, near the police station. He left her sitting in the vehicle. He made some phone calls. This took 20 to 25 minutes. It was not only a couple of minutes. He made some political calls. Olivia did not come in. She remained in the vehicle, to the best of his knowledge.

He drove out of the provincial government offices area and then turned right to go along the North Coast Road. He drove towards Madang Teachers College and Mis. He and Olivia were talking and listening to the music on the radio in the car. Olivia did not seem frightened at any time. He did not try to hit Olivia at any time.

It is not true that he said anything about a lady called Grace being his girlfriend.

They were joking in the car and he touched her. It is not true that she punched the windscreen. Her reaction when he touched her was that she was not opposing it. She did not take his hands off her. As to Olivia’s oral testimony that he said he would fuck her up, that would not be true. He would not recall trying to stop Olivia jumping out of the vehicle. She was never frightened. He would not recall where he touched her as he was driving the vehicle.

They went to Mis Trading and stopped for four or five minutes, just talking. She did not attempt to get out of the car.

From Mis he drove back to the Madang provincial government offices and parked the car in the same position he parked it previously. He opened the door, went in, put on the lights and invited her to come in from the vehicle. There was nothing to stop her getting out of the vehicle. Nor was there anything stopping her going to the police station. He did not hear Olivia calling out to anyone in the area between the Madang Provincial Government offices and the police station, which is the main route or shortcut for many people. He just came outside and invited her to come in. So she came in of her own will. He did not force her. He did not switch on or off any security lights. They come on and off automatically at 6.00 pm and 6.00 am. There is no switch in his office. She did not refuse to come in. She walked in. He does not know whether there were any people who had been to a crusade walking past He did not tell her to shut up. He did not force her to come in or lock her legs.

He did lock the door as he had an arrangement with Olivia to have sex with her. He made that arrangement that morning – to go out and have sex. He made some calls and then they had sex. They each undressed and had sex with each other. He denied locking Olivia’s legs and throwing her on the couch. He did not slap her across the face. He did not forcibly have intercourse with her. She consented all the way as it was pre-arranged. She did not say or do anything to indicate that she did not consent or that she withdrew her consent. When the sex was complete she dressed herself and he took her home. She was not weak as she is a sports girl. She plays softball. He did not have to carry her. He did not switch off the security lights. He just switched off the office lights. Olivia did not go away anywhere. He did nothing to stop her going to the nearby police station.

He drove her straight to the Madang Butchery house. He did not have to wake her up. She had the keys. He told her to open the gate, so she opened the gate and he drove in. He went in and put on the lights inside the house. He parked right in front of the entrance to the house. He asked her to open the door. He put the vehicle lights on the door. He checked that the residence was clear. As he drove out he met Oscar. He did not know which keys opened the gate. He saw no one else inside the house.

Mr Sheppard asked him about Sammy Tinpidu’s evidence, which was that Sammy was in the boys’ room. The accused replied that Sammy could not have been there as they passed him along the way and Olivia had locked the door.

He took Oscar to his residence at Kalibobo, picked up some pork meat and drove him back to the house at Madang Butchery. Then he came back to his residence at Coastwatchers.

The next thing he heard about this incident was a week or two later when he heard that the police were investigating allegations of rape. However, he did not talk to the police until early December 2004.

He identified the record of interview dated 14 December 2004, exhibit A. He was asked 186 questions and opted to remain silent.

He was asked to comment on the sketch plans of the Madang Butchery house and his office annexed to First Constable Reuben Sindiwan’s statement, exhibit B. The house plan is about correct, he said, but that of the office misses one door. It was locked on the night of the incident and the front door, through which he and Olivia entered, was also locked.

He was shown the complainant’s handwritten document, undated, refuting the allegations of rape, exhibit D. He said he first saw this document on the night he, Alois Kingsley and Elizabeth went to Kauris to collect it. He does not know whether the complainant copied it from another document. However, he did not prepare a typed version of the document from which she could copy it. He was asked whether any of his agents had typed this document. He replied not on his instructions and that he would not know. Elizabeth gave it to him. He did not talk to Olivia that day. He stayed in the car. He would not recall instructing anybody to get Olivia to sign it.

He is familiar with Olivia’s handwriting and exhibit D seemed to be written by her. He was shown a copy of the first statement taken to the police, exhibit S. He said that was definitely not Olivia’s handwriting. Though Olivia said she wrote it herself, that would be untrue.

He was asked about the letter of demand, exhibit E. He first saw that letter at his official residence. He does not recall the date. Elizabeth brought it to him. She told him that it is the family’s letter. He would not recall drafting the document and would not recall giving instructions to any of his agents to draft the letter. When Elizabeth Daniels gave him the letter it was already signed. He was really bothered by the contents of the letter. He talked about it with his immediate family, including his wife Angela. He decided to pay some money as his and the family’s reputation in the community and society was at stake.

He did not ask Elizabeth Daniels to force her family to sign the letter of demand. It would not have been typed up on any of his computers as the police took them all. In any event he is computer illiterate. He has no idea where the letter was typed.

The money was paid pursuant to the letter of demand at the Madang Butchery house. Angela gave K25,000.00 cash to Helen Daniels. Helen took the money and all the family members were happy.

The accused was shown two letters withdrawing the complaint against him. First, the letter from the Daniels family to the OIC, CID, Madang, dated 28 October 2004, exhibit H. Secondly, the letter from Olivia Daniels to Deputy Commissioner Baki, dated 12 November 2004, exhibit I. He said he saw these letters for the first time in this courtroom. He did not type them and he did not recall asking anyone to prepare them. He did not ask Elizabeth Daniels to take any document to her family for them to sign. He had no contact with the Daniels family regarding the letters. He did not get anybody to prepare them. He did not hold out any promise or reward to Olivia regarding the letters. He did not ask Elizabeth to get Olivia to sign them.

He was asked about the complainant’s affidavit of 13 December 2004, exhibit G. He said he first saw it when the journalist Kevin Pamba produced it in this courtroom pursuant to a court order. He would not know where the document was prepared. He knows nothing about the circumstances of the swearing of the affidavit. He first knew about it when he saw it in the headlines in the newspaper. He did not type the document and did not instruct anyone to prepare it. He did not offer any threat or promise or reward to the complainant in regard to that affidavit.

He was shown the complainant’s birth certificate, exhibit M. He first saw this certificate when Elizabeth Daniels brought it to him. Angela was present when Elizabeth brought a copy of the birth certificate. Elizabeth was making phone calls to Vunapope from his office. He does not know anything about Elizabeth filling in the form. He believes the details on the birth certificate are probably correct as Helen Daniels told him that Oscar and Olivia were born about the same time. Olivia had a stunted growth and she was born in Kokopo. That is how Elizabeth came to get the birth certificate from Kokopo.

Mr Sheppard asked about Helen Daniels’ evidence regarding her meeting with Michael Kasi and others at the Smugglers Inn, in particular the claim that the accused organised it. He replied that he did not know of such a meeting. He did not instruct Michael Kasi, Masbut or Emile to meet with Helen Daniels. He gave no money to Michael Kasi to offer to Helen Daniels.

As to Helen Daniels’ claim that he arranged for her and Olivia to escape to Lae on or about 8 November 2004, that was not his plan. After the Daniels family received the money, they told him that the police were trying to intimidate them. They asked him to help them by providing a vehicle to get them to Lae. They first stayed at a Manus lady’s house. They had to relocate to his brother’s house. He was in Port Moresby attending a sitting of the Parliament at the time.

He could not recall giving any money to Elizabeth Daniels to give to Olivia.

He was asked again about the letter of demand, exhibit E. He did not recall giving that letter to anybody.

He was asked whether he had said to Elizabeth that if he goes down, they would go down. He stated that, yes, he did say that. Meaning: if he goes to gaol who would look after the Daniels family? The allegations are very serious and his reputation and life were at stake. It was not said in a threatening way.

He did not recall giving Elizabeth Daniels any money in an attempt to bribe State witnesses.

He was asked again about the incident during which he had sexual intercourse with the complainant in his office. He did not hear her say "Aio Mama!" He did not bruise or scratch her face. He did not cause her any pain. He was not in any relationship of trust with Olivia.

He did not take Olivia away from the Madang Butchery house against her will. He did not sexually penetrate without her consent. He did not touch her in any sexual way without consent. He never sexually penetrated her previously without her consent.

In cross-examination the accused, James Yali, stated that he was elected to the Parliament in 2002. It is hard work and his reputation and standing in the community are at stake as a result of the current trial. He has a lot to lose.

Mr Miviri asked about his trip to Manus where he met Helen and Elizabeth Daniels and her relatives. He said that on Friday 22 October 2004 he went to Manus in accordance with an invitation from the Governor of Manus to launch a fishing project. That was confirmed by Elizabeth in her evidence. He did not go to Elizabeth’s village at first. Her family members asked him to go there. When he went, he denied the allegation that he raped Olivia. He did not say that some other boys did it. He did not tell the gathering that he had consensual sexual intercourse with Olivia. He just denied the allegation of rape. He thought that the police were investigating at that stage so he just denied the rape allegation. He did not tell the gathering that he had had a relationship with Olivia for two years. He did not consider it important or necessary to say that. He thinks that the relatives knew already about the relationship and that’s why they wanted to blackmail him.

He repeated that he had a two-year relationship with Olivia. He was the one who arranged for her transport from Port Moresby to Madang.

He knows nothing about an incident in Port Moresby involving Olivia jumping from a moving cab. That did not happen. He did not pay school fees for Olivia but he paid for her airfares to Madang. He was looking after the Madang Butchery house and Elizabeth. He purchased the house and the Daniels family moved in, in early 2004. Elizabeth was unemployed. Oscar and Olivia were going to school. Helen, though a teacher, was also unemployed. They all lived in the house. He thinks that they were all dependent on him. But their survival was not dependent on him as there were other family members who were helping them.

Asked why the Daniels family would come and testify against him if they were dependent on him, the accused replied that his relationship with Elizabeth was not stable. The Daniels family used that opportunity to blackmail him. He feels that some policemen and politicians were also involved.

He denied that he used to belt up Elizabeth. He is not a violent person. She was his mistress but it was not a stable relationship. He never used a power cord or anything like that against Elizabeth.

He said that he often dropped off Olivia at school. He would often go to the house in the morning and if she were ready he would drive her to school. He did not give her lunch money. That was probably taken care of by Elizabeth. He would not know if Olivia trusted him by reason of his relationship with Elizabeth.

He repeated that the sex he had with Olivia was consensual. Their relationship had continued over two years. They had gone out on several occasions, maybe three or four times.

Mr Miviri asked him about Olivia’s evidence that he touched her on her thighs. He wouldn’t recall that. He cannot remember how many times he touched her. He did not do it all the way to Mis Trading. He did not do it on the way back from Mis Trading. When Olivia came into his office he did touch her.

The accused stated that he really has one wife and nine children.

Mr Miviri asked questions about when he brought Olivia back to the house. Asked to comment on Oscar’s evidence that Olivia’s clothes were inside-out, he replied that she had her clothes on the correct way. After they had sexual intercourse in the office she put on her own clothes in the correct way. He would not recall her being injured. Asked to comment on the evidence that Olivia was seen to be walking awkwardly, he replied that that was not truthful evidence. He would not know if she needed to be helped around in the house that night.

He said he often visits Elizabeth at the house but is not really familiar with the light switches. There are many switches. On the night of incident he did not put any lights off.

Asked whether he had carried Olivia out of the car and dragged her into the house, he responded that Olivia had the keys to the house. She opened the door and the gate as well. Although he was the owner of the house he was not familiar with the arrangement for keys and locks.

Asked to comment on Sammy Tinpidu’s evidence that he had been seen dragging Olivia along the hallway of the house, the accused replied that Sammy had said he was walking towards the house and had seen Olivia and that she waved at him. He thinks that the police have framed that evidence up against him.

Mr Miviri referred the accused to Olivia’s letter to Deputy Commissioner Baki dated 12 November 2004, exhibit I. Paragraph 2 of that letter talks about police officers in Madang being aligned to political enemies of the accused. Asked how Olivia would know about his political enemies, the accused responded that he would not know. It was put to him that he was the most appropriate person to know who his political enemies are and those who have been sacked from the provincial public service. He agreed with that but he would not know who had written the letter.

He was shown the complainant’s affidavit of 13 December 2004, exhibit G. He denied taking that affidavit with Elizabeth Daniels to Kauris. He also denied being accompanied by Alois Kingsley. He said no, not this document. The accused said that he didn’t know whether exhibit G contained legal or illegal language. The lawyer whose name appears as the commissioner for oaths – Arnold Amet Junior – was at the time representing him and the Daniels. He could not recall issuing any instruction that the affidavit be drawn up. He only learned about its existence in the course of this trial.

As to the letter of demand, exhibit E, he said that he and his wife, Angela, did not take it to the Madang Butchery house. The letter was brought to him at Kalibobo a few days before the meeting at Madang Butchery when Angela gave Helen Daniels K25,000.00 cash. He did not know that extortion was a crime but he was scared by the letter. He was frightened about his reputation. He did not know then that it was wrong for others to demand money, K50,000.00, from him. He was worried and scared. It was not a simple matter. It was a matter of his reputation. He did not go to the police. He saw no need to. Angela gave the document to the police during the committal proceedings but for some reason it never surfaced at the committal. He denied drafting or instructing anyone to draft such a letter. He said he would not write a letter of demand to himself.

Asked why Helen Daniels would insist for such money from him when she was being fed by him and living under a roof provided by him, he replied that she was only here for three or four months.

Mr Miviri put to him that money is not always equal to the truth. He replied that he would not know whether Helen Daniels is telling the truth.

Mr Miviri also put it to him that though Elizabeth Daniels was dependent on him she was prepared to come to court and say it was him who forced her to prepare the documents. He replied that he did not force Elizabeth to prepare the documents. Elizabeth was making a little business from the money he gave her. He did not instruct Elizabeth to bribe any witnesses. He didn’t even know that the people she said she gave money to were to be witnesses.

As to the movement of people to Lae, he repeated that the Daniels family were complaining that the police were harassing them. He told them if he could arrange a vehicle he would help. He sent the vehicle to take them to their wantoks in Lae. They asked for transport. It was not him who insisted. They also wanted to go to Lae to see Makoma performing. He did not force them to go. He was not trying to get them out of the province. He thought the police investigation would be carried out fairly. He was pinning his hope on the fairness of the investigation. The Daniels family were prepared to transport Olivia to Lae after they had received money from him. He knew eventually that he would be charged and would have to stand trial. The police were already talking to them. He was not trying to hide Olivia. They went to Lae on their own will.

When Olivia returned, he was still in Port Moresby attending the Parliament. He never gave instructions to take Olivia to Jais Aben or to sign any more documents. He does not know how Olivia came to stay at Jais Aben or whether she stayed there or who paid for it if she did stay there.

The accused was shown Olivia Daniels’ undated statement, exhibit D. He said that document was not written at Jais Aben. That is the document Alois Kingsley and Elizabeth Daniels got from Olivia when she was at Kauris. He was given the document when they went to Kauris. He handed it to his lawyer about three weeks ago. He would not know whether his wife, Angela, went to see Olivia at Jais Aben. He does not recall when the document was collected at Kauris. It was in the night. He kept the document himself.

He again denied that any of the documents have been prepared by his staff on his instructions. There was no attempt by him to do that to wipe away guilt. He did not go to the media at any time.

Asked about the governors’ conference, he thinks that on 13 October 2004 it was just starting. The Madang Provincial Government was hosting it. He might have consumed alcohol but he was only at the function at Madang Resort for about 15 minutes before going back to the Madang Butchery house. He does not get drunk. He does drink but he does not get drunk and become stupid. He was talking throughout the night with politicians.

All he did was to ask Olivia to get into the vehicle. He did not threaten to kill her brother.

The Daniels family blackmailed him and got some money.

As to when he went to the house to pick up Olivia, he stayed all the time in the vehicle. There was no cause to get out. He would not know who was in the house.

Michael Kasi is his First Secretary and acts on his instructions regarding his responsibilities as Governor. The accused said that he only learned about Michael Kasi’s meeting with Helen Daniels at Smugglers Inn a day later. He did not know that he promised K5,000.00 to Helen Daniels. He would not know whether Michael Kasi was being investigated by the police.

In re-examination the accused, James Yali, stated that when he went to Manus he did not blame some other boys for what happened to Olivia.

As to Olivia’s claim about jumping out of a moving vehicle in Port Moresby, he was not present, if and when that occurred.

Asked about the trip in his motor vehicle on the night of the incident, he said that Olivia did not at any time object to him touching her.

He did not see Olivia walking awkwardly.

He does not really ever stay in the Madang Butchery house. He just visits there. He purchased the house as an investment as it is an old building and he intends eventually to demolish it and build another one.

He saw Olivia lock the house and the gate. She put the keys on the dashboard.

Shortly after leaving the house he saw someone waving. He did not see Sammy Tinpidu when he brought Olivia back home. It was not possible for anyone to get into the house as the doors were locked, both the house door and the gate.

He did not write or draft or type any of the documents referred to in the evidence, as he is computer illiterate. He did not hand any of the documents to anybody to give to anybody. He did not instruct his agents or Angela or anybody else to give the documents on his behalf to anybody. He did not threaten anybody.

He went to Port Moresby about a day or two after Olivia had asked to go to Lae.

He was shown some of the clothes that Olivia was wearing on the night of the incident by the police, during the interview. He did not notice that any of them were damaged in any way.

That ended the evidence of the accused, James Yali. No other witnesses were called. The defence case was closed.

Then submissions were called for.

SUBMISSIONS FOR THE ACCUSED

The central issue: consent

Mr Sheppard began by suggesting that the trial had parallels with the trial in the Pulitzer Prize-winning novel by Harper Lee, To Kill a Mockingbird (1960). It was based on a true story and made into a film starring Gregory Peck. A black man in the deep south of the United States was falsely charged with raping a white woman. The theme of the movie and the book was that the prosecution was prepared to stop at nothing to convict the black guy because he had had sex with a white woman. Whether she was raped or not was totally secondary to their determination to get him at all costs. The main issue was lost to racial bigotry and tension. But the defence counsel at the end of the day managed to persuade the jury that the issue was one of law, whether there was consent or not, irrespective of whether the woman was white, black or brindle.

Likewise with this trial, Mr Sheppard submitted, the court has heard the evidence of the main investigating police officer, Steven Yalamu, who admitted that he was out to get James Yali at all costs. It should be emphasised therefore that this case is not about a 42-year-old man having sex with a 20-year-old girl. It is not about the integrity of a leader misconducting himself with young women or his moral turpitude. Nor is it about any political machinations that might have surfaced during the trial. There is nothing more to this trial than whether or not Olivia Daniels consented to an act of sexual intercourse.

Mr Sheppard then addressed the four charges.

Count 3

The third count is that the accused engaged in an act of sexual penetration of a child between the ages of 16 and 18 with whom he had an existing relationship of trust. There are two elements the defence says that the prosecution has not proved. Firstly the age of the complainant. There is evidence to suggest that she is in fact older, that she was born in 1984 and not 1987. But at the very highest for the prosecution, it is a doubt which has been raised which they have not eliminated or negatived. Secondly, there is insufficient evidence to prove that there was an existing relationship of trust.

As to the complainant’s age, there is in evidence a birth certificate signed by a Catholic sister from Vunapope which certifies that Olivia Daniels was born on 22 July 1984. Under Section 57 of the Evidence Act, such a certificate is evidence. It was therefore incumbent on the prosecution, in order to negative the doubt that was raised, to obtain their own certificate from Vunapope and show two things: that the complainant was born in 1987 and not 1984; and that Elizabeth Daniels had forged the document. The clear inference to be drawn is that the prosecution, knowing of the existence of the birth certificate, was unable to produce one that contradicted it. Even in re-examination, when Elizabeth Daniels was claiming to have forged it, she did not say it was untrue. The only reliable evidence that has been produced regarding the complainant’s age was that of Helen Daniels. However, the certificate, which is a record in writing of the birth, is preferable to the oral evidence of Helen Daniels.

As to the existing relationship of trust, there was no such relationship. The accused was nothing more than the complainant’s sister’s boyfriend or lover. That sort of relationship is not covered by Section 6A of the Criminal Code.

Meaning of consent

The other three counts each involve the element of lack of consent. If somebody consciously permits somebody to do something, there is consent. Consent may be communicated by conduct. It may be reluctant. In Holman v The Queen [1970] WAR 2, the Court of Criminal Appeal of Western Australia stated:

A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful. But if she consciously permits it, providing her permission is not obtained by force, threat, fear or fraud, it is not rape.

In a New South Wales Supreme Court case, Black v Corkery (1988) 33 ACR 134, Young J stated:

The mere fact that pressure is put on the person consenting is not of itself sufficient to invalidate the consent or to make it other than a voluntary choice. ... a reluctant consent or a grudging consent is nonetheless a consent ... However pressure may get to such a degree that the act will lose its voluntariness. ...

The test: proof beyond reasonable doubt

Leaving aside the abduction charge (count 1), at the crucial time of the sexual penetration and the sexual touching, there were only two people present. There were only two eyewitnesses. Olivia says she did not consent, but James tells the story in reverse. He says she did consent. So the court is confronted with one witness who says she did not and the other witness who says she did. So the court will be guided in making that all-important decision by examining all of the evidence to see whose story is to be preferred. The other things that Olivia has done do not necessarily nullify any criminal conduct. However, when the court comes to determine whether or not there is a reasonable doubt, it inevitably has to examine the veracity of each person’s story. If it is left with a doubt, it will be obliged to acquit. It is not an accurate formula to say: who do you believe? That is not the test. The test is, after analysing all the evidence: is the court left with a reasonable doubt that she did not consent? This requires examination of all of the evidence to determine whether or not that doubt remains.

Mr Sheppard highlighted various aspects of the evidence that give rise to reasonable doubt about lack of consent.

Lack of trauma

If there were a lack of consent, there would be a number of telltale pieces of evidence that ought to be present. It would normally be expected that if sex was forced in the manner described in this case with the application of some degree of violence, there would be some independent corroborative evidence such as the medical evidence. There would be some degree of bruising, scratching, laceration, rupturing or trauma. But here, the evidence of Dr Clement, and in particular the sexual assault form (exhibit P), is that there was no such physical evidence.

Dr Clement testified – though she did not record it – that she noticed some redness in the vagina. But, of course, she properly conceded that this might have come from a number of sources. Also redness in the vagina may come from a vigorous bout of consensual intercourse as much as anything else.

No damaged clothes

If a female is being undressed against her will, some damage to her clothing would be expected. Particularly when what she was wearing was taut: tights and a sports bra which does not have a hook. The bra had to be pulled off over the arms or down the body. The prosecution did not tender any clothes presumably because it did not advance their case.

Lack of recent complaint

If somebody had truly been raped it would be expected, especially as it was supposed to have happened close to the police station, that she would have run down to the police station and complained. She might have been expected to complain to her friend Sheila, but she did not say anything to Sheila. But it was not until Oscar came on the scene that these allegations started to be made. That was because Oscar saw it purely and simply as a money-making exercise.

Inconsistency

The next fact that weighs against Olivia’s evidence is its inconsistency. She has signed many different statements. Sometimes she says she was raped. Sometimes she says she was not raped. It would be difficult for the court not to be left with a doubt that perhaps she is not telling the truth. Some of those statements are entirely exculpatory. It would be very difficult for the court to simply not believe the ones where she says she was not raped and those where she crossed out where she said she was raped; but then believe the one where she did not cross anything out. It is very difficult to not be left with a reasonable doubt that she just made it up. And there is a very good reason why she might have done that.

Demeanour

Her demeanour in the witness box was quite breathtaking in terms of its dishonesty on occasions. This is quite important in the overall scheme of things. For example, after she claimed to have been raped and claimed to have been a virgin before that incident (something she also claimed to Dr Clement), she was cross-examined about the absence of trauma to her vagina. She suddenly changed her evidence. She made another false allegation of rape against the accused. So a few minutes earlier she was a virgin, but when she twigged on the direction that the questioning was taking, she immediately changed. Suddenly she was not a virgin any more. Suddenly the accused had raped her previously. She is a woman who is quite prepared to make a false allegation of rape as and when the circumstances suit her. The court should be left with the abiding impression that she was just making it up as she was going along.

The first statement that she produced to the police (exhibit S) relied on the good old blackout approach: ‘I do not know anything. All I know is I was raped when I woke up. He banged my head on the dashboard and I woke up at 10 o’clock and my pants were wet.’ But of course that got crossed out very quickly. So she changed it to something else.

Then there was the instance where she was insisting that the accused was turning off the security lights. When the court viewed the provincial government offices, she was advised that it would be put to her that the lights are turned off automatically somewhere else. So she immediately changed her story. To say that they were always off. She changed it from ‘Yali switched them off to ‘they were always off.

There are quite a number of other areas in which her story was demonstrated to be false, or at least inconsistent with other witnesses. In particular, as the accused pointed out in the witness box, the story about Sammy Tinpidu being inside the house was one which was just impossible on her version of events. She said she locked the house and gate and they were opened when they came back. If that is right, it was not possible for Sammy to have been in the house.

She has told lies and her evidence is inconsistent with other prosecution witnesses; inconsistent in an impossible way and she has made many inconsistent statements.

Failure to run away

She failed to simply get out and go away. She could have simply walked away with impunity when the accused was nowhere around. She did not have to get in the car in the first place. She could have locked herself in the house and protected herself from the accused. The vehicle slowed down at the junction at the Smugglers Inn. She could have got out there. There was a security guard. She could have asked him for help and got out there. When Mr Yali was getting in the driver’s seat she could have left him. There were plenty of people around at the Smugglers Inn. Outside the provincial government offices the first time she could have gone down to the police station while the accused was in the office. The vehicle stopped at Mis Trading. She could have got out there. She could have got out the second time at the provincial offices while he was opening up the offices and checking the doors. Some people walked past. She did not sing out to them and ask for help. Immediately after the incident she could have rushed down to the police station when the accused was locking up. She did not do any of those things, did not call out for help, and did not walk away when she had the opportunity.

Consent may be implied from conduct. Her conduct in remaining in that situation weighs very heavily in the accused’s favour. This raises a reasonable doubt. Why would a girl who had all those opportunities, when she said she was frightened, when she became apprehensive about the accused’s intentions, not have just walked away on any one of those occasions? The prosecution did not cross-examine the accused about why she could not have got out of the car or run away. The inevitable conclusion is that, yes, she could have got out of the car but did not.

Involvement in blackmail

Her evidence also needs to be discounted because of her involvement in what appears to be a barefaced scheme to blackmail the accused. She signed three documents that demonstrate the blackmail:

the letter of demand, dated 26 October 2004 (exhibit E);

the letter to the OIC, CID, Madang, dated 28 October 2004 (exhibit H);

the letter to the Deputy Commissioner Operations, Garry Baki, dated 12 November 2004 (exhibit I).

She claims to have been pressured into signing the documents by her sister. Elizabeth said she would get her head beaten. She would suffer some sort of violence if Olivia did not sign the documents. Being subject to that pressure, she signed. However, it is incredible to suggest that she would not have read the letter of demand or did not have any understanding of what it was and that it was just a complete mystery to her. The letter of demand is in evidence, in black and white. Her only excuse is that she was frightened because her sister told her that she might get bashed up. But that did not stop her from receiving the money, whether directly herself or through her mother.

This inevitably leads to doubt that this was a rape case. In fact it was nothing but an opportunistic attempt to blackmail the accused on account of the shame he might feel for having consensual sex with a 20-year-old woman, in his position. So she signed the letter and got the money.

There was menace in making the complaint and then offering to withdraw it for money. And she did it. She admitted she did it. Her only excuse was ‘I was frightened because my sister told me that she was going to get beaten up’. At the highest her evidence is that she was persuaded or pressured into signing that document. But it did not stop her from taking the money.

But this case is not about extortion or blackmail. It is about the complainant’s story leaving the court with reasonable doubt. A woman who makes a complaint of rape and then demands K50,000.00 to withdraw the charge would leave a reasonable doubt. Added to that is the fact that she was paid some money. Then she withdrew the charge. When the police did not respond in the way that she had hoped, she wrote another letter just to reinforce it. It is very difficult to be left with any belief in her story whatsoever. She and her family signed two different documents. She herself, signed a third. She now says that on every occasion she did not know what she was signing, she was frightened into it. That story just does not hold water. And there is no suggestion that Mr Yali threatened her at all. It was somebody else. It was Elizabeth, her sister. But Elizabeth might have been out on a frolic of her own. That is an alternative explanation, which is equally consistent with the accused’s innocence. Elizabeth might have thought that she would try and pull James Yali out of the soup. But at the end of the day, Olivia’s signature appears on all of these documents. Her only explanation – she was frightened because her sister told her something – is weak and unconvincing. It gives rise to a considerable doubt as to the veracity of her story.

Improper investigation

On top of all of that the overriding problem for the prosecution is that the investigating officer who took all these statements was out to get James Yali at all costs. So perhaps the complainant’s conduct in this matter can be explained by that. Perhaps that pushed her to do some of these things, like cross out the original statement that she made and make another one.

Effect of the evidence of the accused

The prosecution’s case has not improved since the accused gave evidence. Their case is still very vague and inconsistent and on occasions untruthful. The accused gave evidence in this case and the court will have the benefit of being able to compare the manner in which the two witnesses gave their evidence. In stark contrast to the complainant’s, the accused’s evidence was very clear, precise and frank. His story seems to gel and hold together much better than the complex story that Olivia tells.

The accused, in effect, said that he had a relationship with Olivia previously. On 13 October 2004 they planned to get Oscar out of the way so that they could have another assignation. So he asked them for dinner at the Madang Resort. Oscar went along and Olivia said, ‘oh, I have got to study’, and they got Oscar out of the way. Then the accused went back and picked up Olivia. Then they went off somewhere and had a bout of consensual sex. Then he brought her home. And that was that. Nothing put to him in cross-examination shook his evidence. The accused’s evidence was clear and concise and given quite naturally and in a forthright way. He said very firmly that he had sex with her and she consented. She consented to being touched in the car, she did not protest, she did not complain. Therefore when the court comes to examine any conflict between Olivia’s evidence – whatever that is ultimately determined to be – and James Yali’s evidence, his should be preferred over hers.

Abduction

As to the abduction charge, there is a very considerable doubt about whether Olivia did not consent to getting into the car at the time. There is no evidence of force. The uncontroverted evidence is that the accused remained in his vehicle the whole time. Olivia said that the accused threatened to kill Oscar. It seems that every time she wants to explain something she says ‘oh, my sister’s life was threatened’ or ‘oh, my brother’s life was threatened’. It is the stock-standard excuse, as she wants to say she was not consenting. Bearing in mind that the accused was in the car the whole time, he must have said that from the car, and there were people present. Johnson John was lurking by the water tanks and saw how close they were. Manu Larry was observing from the kitchen, which is also not a very great distance away. But neither of them said that the accused made such a threat. So two independent eyewitnesses called by the prosecution, who were in a position to hear such a threat, did not give any evidence of it. The only person who said that there was a threat to get her into the car was Olivia. And she is always saying that sort of thing.

What Johnson said was that the accused "insisted". Well, he can insist. He can pressure and he can persuade. Provided she makes a voluntary choice to get into the car, it is consensual. If she did not want to get in, all she had to do was lock the gate and lock the house. When she got into the car and was driving off and saw Sammy Tinpidu, she might have reasonably been expected to call for help. But she did not.

So there is considerable doubt on the veracity of her story that she was threatened because the other eyewitnesses did not hear the threat. They did not hear it because she made it up.

Conclusion

When all those doubts about the prosecution’s case are added to the clear, consistent and concise evidence of the accused, the court should conclude that it was clearly a consensual thing, or at least should be left with a doubt that there was a lack of consent. Therefore every one of the counts gives rise to considerable doubt. None has been proved beyond reasonable doubt, which is the required standard. This is a case about consent or lack of it as a fact. It is not about anything else. There are overwhelming doubts about the complainant’s story about lack of consent. Therefore the court should acquit the accused of all charges.

SUBMISSIONS FOR THE STATE

Agreement as to central issue

Mr Miviri agreed that consent, or lack of it, was the central issue for three of the four counts. The court must apply Section 347A of the Criminal Code, particularly Section 347A(3)(b). This provides that a person is not to be regarded as having consented to a sexual act just because there is no physical resistance or because there is no injury sustained as a result. When she said no, she meant no. If indeed there was an existing relationship that had continued for two years, she would not have jumped out of a moving vehicle knowing very well the consequences.

Mr Miviri highlighted the following aspects of the evidence.

Medical evidence

If the accused had engaged in foreplay, ie touched the complainant so as to excite her sexually, then, in the words of the doctor, her body would have been receptive to his penis. There would have been no injuries or no redness in the vagina. Sexual contact is intimate contact between two consenting parties.

Corroboration

If there were consent, Olivia would have tidied her clothes, not worn them inside-out. Her hair would not have been messy. She would not have been crying and in distress, expressing pain in the way that she walked. There is independent confirmation of these things. The evidence was not given by persons who sat down and concocted or tried to cook up a story. Each is at their respective location. For example, the doctors. They are not interested in the outcome of these proceedings or whether James Yali goes to jail or comes free. They are schooled in their profession. It is their school that taught them that the redness which they found was consistent with forced entry. That independently confirms the allegation that the victim asserts.

The purported blackmail

Further corroboration is provided by the accused’s story about blackmail. If an accused puts up a false alibi or false story, that corroborates the prosecution’s version of events (John Jaminan v The State (No 2) [1983] PNGLR 318, Supreme Court, Pratt J, Bredmeyer J, Amet J).

The letter of withdrawal of the complaint from the Daniels family to the OIC, CID (exhibit H) could not have been written by the Daniels family. It uses words such as "without basis ... in law or principle" and "powers enabling under the District Court Act". That was obviously written by a person versed in the law, not by the victim and her family. Likewise with the complainant’s affidavit of 13 December 2004 (exhibit G). Only a lawyer could have drafted such a document. A grade 10 student would not have drafted it. The court should not take those documents into account. Or at least it must look at the circumstances in which the documents were signed. Just as it does when a record of interview discloses that the accused has made admissions but that is challenged on the basis that he has been beaten up or subjected to inhuman treatment or his mind has been overborne. The same principles apply. The court must consider the circumstances in which the documents came about.

The persons or agents who delivered these documents were associated with the accused. None of them are charged with the matter before the court. It can be inferred that they were acting on the instructions of the accused. As to the birth certificate, Elizabeth Daniels obtained it by using the fax machine and telephone in the accused’s office. The document cannot be treated as genuine. It does not contain the seal of the place where it was kept. In any case, Elizabeth admitted that she filled in the details, the name of the complainant and also the date of birth. If she was putting the true date, it would be consistent with that of her mother.

Non-exercise of opportunities to escape

The fact that there are opportunities to escape that are not exercised, does not mean that there is consent. This proposition is supported by Section 347A of the Criminal Code. There is a National Court judgment by Sawong J, decided in Madang, which is on point: The State v Lucas Luma (2004) CR No 603 of 2004, unreported. It was an abduction and rape case. The defence contended that the complainant had a number of opportunities to run away, which she did not exercise. Nevertheless the accused was convicted.

Relationship between the accused and the complainant’s family

The Daniels family was dependent for their livelihood on the accused. He provided them shelter, the house behind the butchery, and he fed them from the support that he gave to Elizabeth. He was not a bad person. He looked after them well. Why would they come before this court and cut off the hand that was feeding them? Is the truth worth more than money or one’s livelihood?

Other circumstantial evidence

As to the transportation of Olivia and Helen Daniels to Lae, the accused says it was the State witnesses who insisted. But if he was genuine, why did he not tell the police about that? He chose not to. He offered the services of his vehicle with his servants and agents to transport them to Lae. And the witnesses lived in Lae with his brother Sigit Yali.

If indeed Sammy Tinpidu was shut out and not in the room, why was he paid money?

Effect of receipt of money by the complainant’s family

The Daniels family got a sum total of K25,000.00 and there was an additional K5,000.00 which was paid initially, earlier, after the meeting at Smugglers Inn organised by Michael Kasi. This evidence points to an attempt to distort or conceal the truth. The court should make a finding of fact on who to believe in regard to the letter of demand. However, even if the court believes the accused’s evidence about the letter, a wrong does not make a right. A wrong is always a wrong. It does not make right what happened initially. It does not make right the forced intercourse on the complainant.

REPLY BY DEFENCE COUNSEL

Credibility of State witnesses

So far as the witness Elizabeth Daniels is concerned, the prosecutor wants to have the court believe that she is a forger: she forged the birth certificate. If the prosecution does not claim that, the birth certificate is evidence of the true birth date of the complainant. That being the case, the credibility of the witness is destroyed. The court would then have to say that it accepts that she is a forger and then believe what she says. It is difficult to believe a word Elizabeth says. Her credibility is about as low down the scale as one can get. It would be unsafe to base any conviction on anything she said.

All of the other State witnesses – the ones that have any probative value, direct witnesses, the Daniels for example – are in the same boat. All of the Daniels witnesses, including Olivia, are in precisely the same boat because each of them admitted signing what, on the face of it, is a shocking criminal act. They signed on so many occasions that it is difficult to believe they were not engaged in a conspiracy to blackmail. But what seals it is: they got the money. They wrote a letter saying give us K25,000.00 first and K25,000.00 later. They got the money and they accepted it. They are the facts. A person’s intentions and motives can be judged by the bare facts.

This is what happened: Olivia made a false complaint, Oscar latched onto it and concocted a scheme to blackmail Yali out of a lot of money, and did. As to Mr Miviri’s question ‘why would they cut off the hand that fed them?’ – the answer is that they wanted a big slice of money. They wanted 50,000 bucks, which is probably more money than they have seen in one place at one time in their entire lives. That is why. One of the classic motives for crime: money. And they got it. The motive behind all of this was to get the money. If the accused had been going around writing letters demanding K50,000.00 from himself they would have taken it to the police and said, ‘the truth is more important than money’. But they took the money. And all the while under the wings of the police officer who would do whatever it took, who would stop at nothing to kill the mocking bird.

Other evidence

When the court looks at the overall independent evidence, it all weighs heavily against her story. It tends to discredit her evidence. As to the medical evidence, the redness – which was not reported in the written report but which came as an afterthought through Dr Clement – is easily explained by any one of a number of other factors consistent with intercourse.

Consent

Consent is accurately described by the prosecutor as free and voluntary agreement. It is precisely what Olivia gave that night. It was not a case of saying no, and meaning no. She said yes, and meant yes.

Section 347A(2) of the Criminal Code prescribes the circumstances in which a person is not regarded as having consented. However, the only ones conceivably relevant are (b) and (c): the person submits because of threats or intimidation against, or fear of harm to, that person or someone else. The initial threat by the accused was said to be ‘I am going to harm Oscar’. But he could not possibly have said that because none of the other witnesses within earshot – Johnson and Manu – said they heard it. People who were there who could be expected to have heard such an outrageous thing – if it was said – would have come to court and said they heard him say that. But they did not. It appears that the complainant’s evidence was tailored to bring it within the terms of Section 347A(2). Somebody was telling her what to say, because that is what it takes to ‘kill the mocking bird’. That is what they will do, that is what they will say, whether it is the truth or not. But who made the threat? As to the complainant’s excuse for writing all those letters and statements refuting the rape allegations – that was because she was frightened that Elizabeth would be harmed. But there was no suggestion of any threat made by the accused. She just decided in her own mind that there was a threat. Or perhaps Elizabeth told her, and the court knows what a liar she is.

As to Section 347A(3), the complainant did something to indicate consent. She stayed in the car with him. She went into the governor’s office with him and volunteered, freely and voluntarily, to have sex with him. There was no weapon used or other threat. There is no suggestion of torture. She says that he confined or restrained her. But he says something different. There were plenty of people around. She had plenty of time to go away.

No relationship of trust

As to count 3, the prosecution has not made any submission about the relationship of trust. Because he gives money to his girlfriend, it does not put him into any position of trust with somebody else that she invites into the house. What the section is designed to prohibit are relationships such as relatives, doctors, lawyers, people who have some sort of authority. And just because Mr Yali gives his girlfriend some money, it does not put him in a position of trust to her sister. The highest the relationship is between them is her sister’s boyfriend. That is a reason to distrust someone, not trust them.

Drafting of documents

As to the drafting of the documents signed by the Daniels family, the proper inference is that they were drafted by a bush lawyer – and her name is Elizabeth Daniels. Some of the letters contain meaningless claptrap. No lawyer worth their salt would draft documents like that. It is somebody pretending to be a lawyer. It is the Daniels bush lawyers clan. The documents were written by the Daniels to get some money off the accused.

Was it blackmail?

As to whether the court should make a finding as to which version of the events to believe in relation to the letter of demand, Mr Sheppard submitted that the court should principally be concerned with whether the elements of each offence have been proved to the required standard. It might not be necessary to make a determination at all except to say that the court does not know which version of the events is right and which is not.

But it does the complainant no credit that she signed the documents. It does her no credit that she got the money. All those things weigh against accepting whatever that she is saying and create a reasonable doubt. The court must ask whether it is left with a reasonable doubt that the complainant did not consent. The answer, Mr Sheppard submitted, is: yes, considerable doubt. There is a doubt that this might not have been a rape at all, it could possibly have been a blackmail attempt. So the court does not have to determine whether it is or not blackmail. The only question that is appropriate is whether there is a doubt on the elements of the offence. That is how that question ought to be approached.

If the court finds it necessary to form a view on whether it was a blackmail attempt and concludes that it was a blackmail attempt, that would further reduce the credibility of Olivia’s story about consent. It would increase the doubt as to lack of consent. If the Daniels family were blackmailing, it might be that she just made the story up to get the big slice of money. She might have consented and then, when Oscar found out, used it to blackmail Yali.

THE LAW: ELEMENTS OF THE OFFENCES

To sustain a conviction the State has the onus of proving beyond reasonable doubt the existence of all the elements of the offence in relation to any one or more of the four counts on the indictment.

Count 1: abduction

Section 350 (abduction) of the Criminal Code states:

(1) A person who—

(a) with intent—

(i) to marry or carnally know a woman; or

(ii) to cause her to be married or carnally known by any other person,

takes her away, or detains her, against her will; or

(b) from motives of gain, and with an intent referred to in Paragraph (a), takes or entices away, or detains, a woman who is under the age of 21 years, and who—

(i) has any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any property; or

(ii) is a presumptive heiress or co-heiress, or the presumptive next of kin, or one of the presumptive next of kin, to any person who has such an interest,

out of the custody or protection of her father or mother, or other person having the lawful care or charge of her, and against the will of the father or mother or other person,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) A person who is convicted of an offence against Subsection (1) that was committed with respect to a woman referred to in Subsection (1)(b), is incapable of taking any estate or interest, legal or equitable, in any property of the woman, or in which she has any interest, or that comes to her as an heiress, co-heiress, or next of kin, and if he has married the woman, all such property shall, on his conviction, be settled in such manner as the National Court, on application by the Principal Legal Adviser, orders.

To obtain a conviction under count 1 the prosecution must prove the following matters beyond reasonable doubt:

- the accused took the complainant away;

- against her will;

- with intent to carnally know her.

There used to be a definition of "carnally know" in Section 6 of the Criminal Code that stated that the element was "complete on penetration". However, that provision was repealed by Section 2 of the Criminal Code (Sexual Offences and Crimes Against children) Act 2002 and replaced by a new Section 6 that defines "sexual penetration" (see below). The ordinary meaning of carnal knowledge as "sexual intercourse" would therefore be apposite (see The New Oxford Dictionary of English, Oxford University Press, 1998, p 287).

Count 2: rape

Section 347 (definition of rape) of the Criminal Code states:

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

To obtain a conviction under count 2 the prosecution must prove the following matters beyond reasonable doubt:

- the accused sexually penetrated the complainant;

- without her consent.

"Sexually penetrates" is defined by Section 6 (sexual penetration), which states:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

"Consent" is defined by Sections 347A (meaning of consent) and 347B (where belief in consent is not a defence).

Section 347A states:

(1) For the purposes of this Part, "consent" means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but [are] not limited to, the following:—

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(d) the person submits because he is unlawfully detained; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the person mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because—

(i) he did not physically resist; or

(ii) he did not sustain physical injury; or

(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

Section 347B states:

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where—

(a) the accused's belief arose from his—

(i) self-induced intoxication; or

(ii) reckless or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.

Count 3: abuse of trust

Section 229E (abuse of trust, authority or dependency) of the Criminal Code states:

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older.

To obtain a conviction under count 3 the prosecution must prove the following matters beyond reasonable doubt:

- the accused engaged in an act of sexual penetration of the complainant;

- the complainant was a child between the ages of 16 and 18 years;

- the complainant was a child with whom the accused had an existing relationship of trust.

Section 6A (relationship of trust, authority or dependency) states:

(1) When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control.

Count 4: sexual assault

Section 349 (sexual assault) the Criminal Code states:

(1) A person who, without a person's consent—

(a) touches, with any part of his body, the sexual parts of that other person; or

(b) compels another person to touch, with any part of his body, the sexual parts of the accused person's own body,

is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with any part of his body or with any object manipulated by the person.

(4) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a tern of imprisonment not exceeding 10 years.

To obtain a conviction under count 4 the prosecution must prove the following matters beyond reasonable doubt:

- the accused touched with a part of his body;

- the sexual parts of the complainant;

- without the complainant’s consent.

Circumstances of aggravation

If an offence under Section 347(1) (count 2) is committed in "circumstances of aggravation" the maximum sentence is increased by Section 347(2) from 15 years to imprisonment for life. If an offence under Section 349(1) (count 4) is committed in "circumstances of aggravation" the maximum sentence is increased by Section 349(2) from 5 years to 10 years. "Circumstances of aggravation" are prescribed by Section 349A (interpretation). They include, eg where the accused uses or threatens to use a weapon or constrains or restrains the complainant before or after the commission of the offence. In the present case, the indictment does not charge the accused with any circumstances of aggravation. Therefore none of the prescribed circumstances have to be proven to constitute an offence.

ASSESSMENT OF EVIDENCE

The following approach will be taken:

1 Comments will be made on the submissions of both counsel, indicating in general terms whether their approach to the assessment of the evidence and identification of the key issues is accepted.

2 The law on corroboration of evidence for sexual offences will be set out.

3 The undisputed facts will be laid out.

4 An assessment will be made of the credibility of the different pieces of evidence that have been adduced: both the oral testimony of the witnesses and the documentary evidence.

5 The contentious factual issues will be determined, placing them in two categories:

(a) those relating indirectly to the elements of the offences; and

(b) those directly pertinent to the elements of the offences.

6 I will conclude by addressing each of the four counts and determining whether the prosecution has proven, in relation to each count, that all elements of the offence have been established beyond reasonable doubt.

COMMENTS ON SUBMISSIONS

I accept the defence counsel’s submission that this is not a case that should focus on the morality or ethics of the accused or any other person. Nobody has been charged with extortion or blackmail or demanding money with menaces; though it has been submitted that those things happened. It is relevant to consider whether they did, in fact, happen. However, from the beginning to the end of this trial the principal focus of the court is the charges that the accused is facing. It is a criminal trial. The accused has been charged with four offences. The court’s paramount task is to determine whether all the elements of any one or more of the offences have been proven by the prosecution beyond reasonable doubt.

It is not a simple matter of deciding who to believe. As Mr Sheppard submitted – and Mr Miviri agreed – the issue is whether the prosecution has discharged the onus of proving each element of an offence beyond reasonable doubt. If, in relation to one of the charges, there is a reasonable doubt as to the existence of any one or more of the elements, the court is obliged to acquit the accused of that charge.

Putting aside count 3 for the moment – as it does not have ‘lack of consent’ as an element – I accept that consent, or lack of it, is the crucial issue. The accused has testified that sexual intercourse and sexual touching took place. He therefore accepts the existence of some of the elements of each of counts 1 (abduction); 2 (rape); and 4 (sexual assault).

For count 3, the issues centre on the age of the complainant and the nature of the relationship between her and the accused.

Both counsel agree that consent means free and voluntary agreement. I accept therefore that lack of free and voluntary agreement is what the prosecution has to prove, beyond reasonable doubt, at least for counts 2 and 4. However, some care needs to be taken in transposing that definition of lack of consent to count 1, where the equivalent element is doing something ‘against the complainant’s will’. I will return to this point when addressing count 1 in detail.

I accept Mr Sheppard’s submission that for counts 2 and 4 – where the critical issue is lack of consent – there were only two people present at the critical time. They have both given evidence, so their respective credibility as witnesses of truth will have to be assessed. The court has to assess their demeanour in the witness box; assess the believability of their stories; examine the degree of consistency in their evidence (both its internal consistency and its consistency with the evidence of other witnesses); and examine all the other evidence, which can be described as circumstantial in nature, to determine which version of events is the correct one. It might be that, after doing all that, the court will not know who to believe. If it reaches that conclusion, the prosecution will not have proven its case and the accused will be acquitted.

A feature of this case is that the complainant has signed a number of documents that are apparently exculpatory in nature. That is, on the face of the document, it declares that the accused is not guilty of wrongdoing. A lot of evidence has been adduced as to the circumstances in which each document was signed. That will have to be assessed closely.

There is also the letter of demand (exhibit E), that cannot be ignored. And also the receipt of K30,000.00 by the complainant’s mother. These are all matters of evidence that are, to some extent, relevant. The accused maintains that he was the victim of blackmail or extortion. That he was set up. The court will need to make an assessment of that sort of evidence, all the while remaining focussed on the principal issue: whether the elements of each offence have been proven beyond reasonable doubt. I accept Mr Sheppard’s submission, however, that if the court finds that the accused was blackmailed, this would tend to reduce the credibility of the complainant’s evidence. It would not necessarily nullify the credibility of her evidence. That is, if the court is satisfied that this was blackmail, it would not necessarily lead to the conclusion that the accused was not guilty. It would not automatically extinguish criminal liability.

UNCORROBORATED TESTIMONY OF COMPLAINANT

Principles

Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape based on the uncorroborated testimony of the complainant. The practice was consistent with the position at common law, the rationale being that rape is a serious charge, easy to allege and difficult to refute. (The State v Kewa Kai [1976] PNGLR 481, National Court, Prentice DCJ; The State v Anton Kumak (1990) N835, National Court, Ellis J; The State v Bikhet Nguares Paulo [1994] PNGLR 335, National Court, Doherty J.) (See generally D R C Chalmers et al, Criminal Law and Practice in Papua New Guinea, 3rd edition, Lawbook Co, © 2001, pp 333-335.)

Nowadays the opposite is the case: not only is the National Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required) states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]

The accused has been charged with three offences under Division V.7: counts 1, 2 and 4. He is charged with one offence (count 3) under Division IV.2A (sexual offences against children). For that offence, Section 229H (corroboration not required) applies. It is in exactly the same terms as Section 352A.

Therefore the principles regarding uncorroborated testimony are the same for all four counts.

"Uncorroborated testimony" is defined, in relation to an accused person, by Section 1(1) to mean "testimony that is not corroborated in some material particular by other evidence implicating him".

The principles of evidence to apply perforce of Sections 352A and 229H are:

- if the complainant’s evidence is regarded as uncorroborated, it is still possible to find the accused guilty;

- the State still bears the burden of proving the elements of the offence beyond reasonable doubt;

- the judge is not required to instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration;

- on the contrary the judge must not give an instruction of that sort;

- if such an instruction is given, an error of law will be committed.

Interestingly there are a number of provisions of the Criminal Code that expressly state that a person cannot be convicted of an offence on the uncorroborated testimony of one witness. These include Sections 54 (sedition); 59 (false evidence before Parliament); 116 (false electoral claims); 121 (perjury); 196 (false statements required to be under oath or solemn declaration); 218 (procuring girl or woman); and 219 (procuring girl or woman by drugs etc). I mention those provisions, by way of contrast, to demonstrate how strict the new rules are regarding sexual offence trials. I state for the avoidance of doubt that I have applied the new rules to the present case.

Application

It is possible to regard the present case – and this is a point emphasised by Mr Sheppard in his submission – as one in which the State is seeking a conviction on counts 2, 3 and 4 on the basis of the uncorroborated testimony of the complainant. (Count 1 is different, as there were other witnesses present at the commencement of the alleged abduction.)

The complainant is the only witness to testify that she witnessed what happened at the accused’s office. The only other person present was the accused. He gave evidence but it contradicts, rather than corroborates, the complainant’s evidence as to lack of consent. The court has to decide who to believe: the complainant or the accused. It could be argued that her evidence is corroborated by the evidence of the manner in which the accused dropped her back at the house; the fresh complaint she made to her brother, Oscar; the evidence that she was medically examined the day after the incident and the examination revealed that she had recently been sexually penetrated; the payments made on behalf of the accused to the complainant’s family. I regard that evidence as relevant. However, it is not direct corroboration; it is more like circumstantial evidence.

I will regard counts 2, 3 and 4 as being based on the uncorroborated testimony of one witness, the complainant. I therefore remind myself, in accordance with Sections 352A and 229H, that a conviction is still possible and that the prosecution still bears the onus of proving the elements of each offence beyond reasonable doubt. I do not instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.

UNCONTESTED FACTS

The accused and the complainant

The accused, James Yali, is the member for Rai Coast in the National Parliament and Governor of Madang Province. He is aged about 42 and married to Angela Yali. At some time in 2003 he formed a relationship with the complainant’s sister, Elizabeth Daniels, who became widely regarded as his ‘second wife’. He did not enter into a statutory or customary marriage with Elizabeth, so in this trial they have been treated, for the purposes of the Evidence Act, as being in a de facto relationship (see the ruling on evidence in The State v James Yali (2005) N2931). That relationship existed at the time of the incident that is at the centre of this trial, 13 October 2004. However, it no longer exists.

The complainant, Olivia Daniels, was a school student at the time of the incident. She was doing grade 10 at Tusbab Secondary School in Madang town. Her age is a contentious issue. The prosecution says she was aged 17 at the time of the incident. The defence says she was 20.

Olivia’s mother is Helen Daniels. Her father, who died several years ago, was Oscar Daniels. Helen and Oscar Daniels had five children: Elizabeth; Brian; Oscar Junior; Olivia and Isaac. Helen, Elizabeth, Oscar Junior and Olivia gave evidence in the trial. Brian and Isaac did not.

In about early 2004 James Yali purchased a two-level residence located at the back of the Madang Butchery supermarket. Elizabeth moved in there. During 2004 Olivia and her brother, Oscar (also known as Junior) lived in the bottom floor of the residence, with Elizabeth. Another family lived on the top floor. Oscar was also attending Tusbab, doing grade 11. Helen was also staying there for several months during 2004. Elizabeth, who was previously formally employed, was unemployed during 2004. Helen, a schoolteacher by profession, was also unemployed during 2004.

Unless otherwise stated, the dates mentioned below refer to 2004.

Events of 13 October 2004

13 October was a Wednesday. Helen and Elizabeth were in Manus at their home village, M’Bunai. At about 7.00 am or 7.30 am the accused went to the house at Madang Butchery. He was driving his white Toyota Landcruiser, single-cab utility, with red stripes, registration No MAC 989. The National Governors’ Conference, hosted by the Madang Provincial Government, was beginning. The accused asked Olivia and Oscar to attend the conference dinner that night at the Madang Resort. He drove Olivia to school.

Later that day, at about 7.00 pm or 8.00 pm, the accused drove the same vehicle to the house at Madang Butchery to pick up Olivia and Oscar. Olivia said that she had homework to do. The accused, who had a couple of other people with him, took Oscar to Madang Resort. The accused stayed only a short time, then went back to the house at Madang Butchery.

He parked the car outside the gate. There was a conversation between the accused and Olivia. He asked her to come with him. Olivia got on to the back of the utility and sat in the tray.

The accused drove past Madang Resort, then on to the beachfront road (Coronation Drive) to Modilon Road, where he turned left. He then drove a short distance before turning left into Smugglers Inn. He went inside to meet some people or make a phone call. Olivia remained on the back of the vehicle. When he came back, they had a short, heated conversation. He told her to get into the cab as if she stayed on the back people might think that she was a prostitute. She did not want to get into the cab, but eventually did so. He then drove to the Madang provincial government offices. He parked around the back, close to the back door of his office. He went into his office. Olivia remained in the vehicle.

He emerged from the office, got back in the vehicle and drove towards and on to the North Coast Road. Olivia was still in the cabin, in the offsider’s seat. He drove past Madang Teachers College. On the way there, he deliberately touched Olivia in a sexually suggestive way. He drove to the village of Mis, on the North Coast Road, which is about 8 kilometres out of Madang town. He stopped the vehicle there, turned around and drove back to the Madang provincial government offices.

He parked the vehicle in the same spot. He opened the door to his office. They both went inside (she says he forced her in; he says she went voluntarily), where he sexually penetrated her by introducing his penis into her vagina. This is the incident that is the focus of count 2.

He then drove Olivia back to Madang Butchery. He parked right in front of the entrance to the house. He took Olivia inside. As he was driving out he met Oscar. He took Oscar to his official residence at Kalibobo, which is only 1 kilometre away. He picked up some pork meat, gave it to Oscar and took him back to the house at the back of Madang Butchery. (Oscar says that he was taken to Smugglers Inn, before going back to the house.)

Events after 13 October 2004

On Thursday 14 October Olivia was taken for a medical examination at Modilon Hospital, Madang town.

On Friday 15 October Olivia went to Lae, where she stayed for a week. On the same day, 15 October, Oscar and a family friend, Junior Diop, picked up the medical report from the hospital and took it to ANZ Madang, where it was locked in a safe. Also on that day, Elizabeth, who was still in Manus, went from the village to Lorengau. She rang Madang and was told something about an incident involving James and Olivia.

On Friday 22 October Olivia came back from Lae. On the same day, James Yali flew from Madang to Manus, where he stayed until Monday 25 October. During that time he spoke to Elizabeth and Helen, who by then knew about the allegations that were circulating that he had raped Olivia. He also had a meeting with Elizabeth and Helen and their relatives, at their village. That was on Sunday 24 October.

Meanwhile back in Madang, on Saturday 23 October, the allegations were reported to the police for the first time. Oscar met with Constable Adam Yawing. On Sunday 24 October Constable Yawing interviewed Olivia. A complaint was registered in the occurrence book. Oscar was recorded as the informant. Later that day, Det Snr Sgt Steven Yalamu, then the acting OIC of the Madang CID, became aware of the matter. He arranged for Olivia to be interviewed by First Constable Jenny Ariku of the sexual offences squad. Olivia presented a handwritten statement to the police.

On Monday 25 October Helen Daniels flew from Manus to Madang, with James Yali and Wilfred.

Tuesday 26 October was the date of the letter of demand (exhibit E). However, it is not agreed who drafted it or when or how it came to be signed by four members of the Daniels family.

On Thursday 28 October Olivia swore an affidavit (exhibit F) at the District Court at Madang, making allegations of rape. She has adopted that affidavit as the truth. The letter from the Daniels family to the OIC, CID, withdrawing the complaint against Hon James Yali (exhibit H) bears the same date. On the same date, 28 October, there was a meeting at Smugglers Inn to discuss the allegations. In attendance were on the one hand, Michael Kasi, Masbut and Emile and, on the other hand, Helen Daniels, Brian Daniels and Constable Yawing.

On Sunday 31 October Michael Kasi gave Helen Daniels K5,000.00 in cash.

On Monday 1 November Elizabeth returned from Manus to Madang, with two uncles.

On or about Thursday 4 November there was a meeting at the Madang Butchery house to discuss the allegations, the letter of demand and the payment of cash. The evidence differs sharply as to how this meeting came about and who drafted the letter and who gave it to the accused. However, the evidence is clear enough that the meeting took place on or about this day. (Helen suggested that the meeting was on the Monday. But Elizabeth stated that it was on Thursday. The latter is more likely to be correct.) Present were, on the one hand, the accused, Angela Yali, Michael Kasi, Masbut, Michael Ururu, Michael Ururu’s wife and James Yali Junior; and, on the other hand, Helen, Elizabeth and Brian Daniels. Olivia and Oscar were not present. Angela Yali gave Helen Daniels an envelope containing K25,000.00 cash. The cash was later deposited into the ANZ Bank, Madang.

On Saturday 6 November Helen and Elizabeth Daniels delivered the letter of withdrawal to the OIC of the Madang CID (exhibit H).

On Monday 8 November Olivia and her mother went to Lae. They stayed at an aunt’s house, then moved to Sigit Yali’s house.

On Tuesday 9 November Elizabeth was arrested and charged with compounding a crime and attempting to pervert the course of justice (see The State v James Yali (2005) N2932).

12 November is the date of the letter from Olivia to the Deputy Commissioner of Police, Garry Baki (exhibit I).

At some stage, Olivia wrote a handwritten document (exhibit D) refuting the allegations of rape. It is undated but, as it refers to the letter to Deputy Commissioner Baki, it is likely to have been signed on some date after 12 November.

In early December Olivia and Helen Daniels returned from Lae to Madang.

Monday 13 December is the date of Olivia’s affidavit, in which she again refuted the rape allegations (exhibit G).

On Tuesday 14 December Det Snr Sgt Yalamu interviewed the accused at the CID office at Madang town police station and then prepared a record of interview (exhibit A).

In February 2005 Elizabeth Daniels obtained a pro-forma birth certificate for Olivia and filled in the details (exhibit M).

Documents signed by the complainant

Olivia Daniels signed seven documents relating to the allegations against the accused. The question of who drafted each document is in issue but it is not disputed that she signed them. They are set out below in chronological order (according to the actual or estimated date of the document).

TABLE 3: DOCUMENTS SIGNED BY THE COMPLAINANT

No Date Description Exhibit Comments

1 24.10.04 Statement to police: S This is the statement handed to First Olivia Daniels Constable Ariku of Madang police.

2 26.10.04 Letter: Daniels E This is a letter of demand for family/Hon James Yali K50,000.00, also signed by Helen, Brian and Oscar Daniels.

3 28.10.04 Affidavit: Olivia F This affidavit gives details of the Daniels alleged rape incident.

4 28.10.04 Letter: Daniels family/ H This is a letter withdrawing the A/OIC, CID, Madang complaint against Hon James Yali; also signed by Helen, Brian and Oscar Daniels.

5 12.11.04 Letter: Olivia Daniels/ I This is a letter withdrawing the Dep Commissioner complaint against James Yali. Operations, Garry Baki

6 Undated Document entitled D This document (not sworn or "My affidavit before affirmed before a Commissioner for my lawyer" Oaths) retracts all rape allegations

7 13.12.04 Affidavit: Olivia G This affidavit, which states that it has Daniels been sworn before A Amet Jr, Commissioner for Oaths, refutes the rape allegations.

CREDIBILITY OF EVIDENCE

Documentary evidence

Of the 19 exhibits, seven were documents signed by the complainant. The circumstances in which these documents were signed are contentious. However, the existence of the documents and the fact that they were signed by the complainant are not in issue. Amongst the documents she signed is a letter of demand for K50,000.00 dated 26 October 2004. It was signed by the complainant and three other members of her family. It falls into the same category as the other six documents the complainant signed in that there is no doubt that the persons whose names are listed on it signed it, though the circumstances in which they signed are in issue.

The authenticity or credibility of only two of the 19 documents is actually in issue: the complainant’s birth certificate (exhibit M) and the complainant’s original handwritten statement handed to the police (exhibit S).

Exhibit M is important for the purposes of determining the complainant’s age at the time of incident. Her sister, Elizabeth, gave evidence that she arranged for a blank pro-forma birth certificate to be faxed to her in the accused’s office in February 2005. She wrote in the details on the blank form. Both sides accepted that Elizabeth’s evidence was truthful. However, the issue remains as to what value the birth certificate is as proof of the complainant’s age, given the circumstance in which it was prepared. This issue is addressed later.

As to exhibit S, the complainant maintained that she wrote this document herself. A comparison of the handwriting on the document with that on another handwritten document, which neither side disputes was written by the complainant (her undated document refuting the rape allegation, exhibit D), suggests that the handwriting is different. Mr Sheppard alluded to this with some witnesses but his submission did not ask the court to draw any conclusions on the point. In the final analysis, there was insufficient evidence on which to draw any conclusion. Exhibits D and S are dealt with as though they had been written by the complainant; and to that extent their authenticity is not in issue.

Oral evidence

Witness No 1 was the complainant, Olivia Daniels. She was in the witness box on each of the first four days of the trial and on day No 9. She appeared to be very nervous at first. She was subject to vigorous cross-examination. Half-way through her first cross-examination she elected to give her evidence in English rather than having it interpreted from Tok Pisin. Her confidence as a witness increased as the trial proceeded and the intensity of the cross-examination and the challenge to her integrity increased. Mr Sheppard put to her on many occasions that she was a liar, that she had made up stories, that she was willing to sign virtually any document put in front of her, that she was careless with the truth, that she was engaged in extortion and blackmail and had concocted a story in league with other members of her family to get money out of the accused. It was put to her that there were many inconsistencies in her story and she was willing to change her story as circumstances required.

The cross-examination she encountered was vigorous but not oppressive; searching but not salacious. At the end of the process of her giving evidence I was not left with the impression that she was clearly lying or unreliable. I do not accept the defence counsel’s submission that her demeanour in the witness box exhibited breathtaking dishonesty.

Mr Sheppard highlighted the fact the complainant quickly changed her evidence that she was a virgin before the incident of 13 October 2004 as soon as she realised the consequences of her evidence. That evidence was given when Mr Sheppard was cross-examining the complainant about her affidavit of 28 October 2004 (exhibit F), in which she stated that James Yali had tarnished her bright future. Mr Sheppard asked if she was referring to the loss of her virginity and she replied yes. Then she said that, in fact, she was not a virgin prior to the incident of 13 October 2004 as the accused had done the same thing to her twice before. Having carefully considered this exchange, and looked at the affidavit of the complainant, there is an interpretation available other than that contended for by Mr Sheppard. Her affidavit did not state expressly that she was a virgin prior to 13 October 2004. Mr Sheppard’s first question was cast in general terms. So I do not think that she did, in fact, change her evidence on the spur of the moment. However, even if she did, the court must take into account the fact that she is a young woman who was in open court being asked very probing questions about her sexual conduct. It is also true that when she reported to Modilon Hospital the day after the incident she stated that she was a virgin. I do not think much flows from this. It is, I consider, not unexpected that when a young female is medically examined over an alleged rape incident that she would say that she had been a virgin prior to the incident.

I do not think the defence counsel succeeded in establishing clear and irreconcilable inconsistencies in the complainant’s version of events. It was put to her that she was saying things in her oral testimony that were not mentioned in her police affidavit (exhibit F). I thought that such differences were unremarkable and to be expected. It appears that the police affidavit was not drawn up by a lawyer and it would not be necessarily expected to be a complete record of the complainant’s version of events.

Mr Sheppard’s suggestion that the complainant had produced a statement to the police in the early days of the investigation (exhibit S) that was completely at odds with her later version of events – thereby supporting the concoction submission – is not one that I found compelling. The complainant said that she wrote out that statement thinking that it was going to be handed to a male police officer. When she was interviewed by First Constable Ariku (witness No 15) she felt more comfortable and willing to give details as to what actually happened. I consider this to be a credible explanation for the document being changed substantially.

As to the submission that the complainant changed her story when the court viewed the accused’s office, regarding whether the lights were switched off by the accused or always off, that part of the proceedings was not recorded and I cannot attach any weight to it.

Mr Sheppard submitted that her story was demonstrated to be false or at least inconsistent with other witnesses, in particular concerning the movement of other witnesses such as Sammy Tinpidu who was said to have been inside the house. Mr Sheppard suggested that that was physically impossible given her version of events, which was that she locked the boys inside the house, and Sammy wasn’t one of those locked in. I think there is another explanation of this, which is that when the complainant locked the house she did so in a way that the house could be unlocked from the inside. The prosecution did not elicit this possibility in the evidence but neither did the defence rule it out as a possibility. I am not suggesting that the defence was obliged to do that. I conclude that it was a plausible explanation. I do not think the complainant was lying about this issue.

The complainant’s failure to run away on the numerous occasions when the defence submitted she had the opportunity to do so, is also not something that I consider undermines her credibility. This is an issue of fact to be weighed in the balance when determining she was taken away against her will and whether she consented to sexual intercourse by her conduct. However, after considering the way in which she responded to cross-examination on the issue of her failure to run away, I am not satisfied that her credibility as a witness was unduly tarnished.

I took into account the fact that at least during the early part of her giving evidence in chief and cross-examination there were long pauses between the questions and the answers. There were some questions that the complainant did not answer. On a number of occasions I had to ask whether she understood the question and whether she proposed to answer it. However, at the end of the process of her giving evidence I did not draw any adverse conclusion as to her credibility arising from the way she gave her evidence. I do not mean to suggest that the court should believe everything that she said. Nor do I propose to ignore inconsistencies in her evidence. However, it is important for the court to form an opinion on the overall credibility of the complainant’s evidence. Therefore I state that, in particular having regard to her demeanour in the witness box, I regard the complainant as a credible witness.

Witness No 2 was Alphonse Yohang. His evidence was of very limited value. However, he appeared to be a credible witness.

Witness No 3 was the complainant’s mother, Helen Daniels. I formed the view that she gave her evidence in an honest fashion. She was subject to vigorous cross-examination. She admitted that she had received a considerable sum of money – K30,000.00 – as a result of the incident of 13 October 2004. I regard Helen Daniels as a credible witness.

Witness No 4 was Oscar Daniels Junior. He was also subject to vigorous cross-examination. It was put to him that he waited ten days before taking the matter to the police, to give himself time to concoct a way of squeezing money out of the accused. His explanation was that James Yali was a big man and he was afraid and that he sent his sister to Lae for a week soon after the incident for her own protection. I found this explanation credible, not fanciful. I consider that Oscar’s evidence as to the circumstances in which he signed the letter of demand was consistent with the evidence of other members of his family. His demeanour in the witness box was not of someone who was a liar or a particularly clever or conniving person. I regard him as a credible witness.

Witness No 5 was Elizabeth Daniels. She was also subject to vigorous cross-examination. It was suggested to her that she was the one responsible for the letter of demand and she had conspired with other members of her family, particularly her brother Oscar, to blackmail James Yali because he had slept with her sister. Defence counsel also suggested that she was responsible for drafting a number of other documents signed by the complainant. The impression I was left with of this witness, in terms of the credibility of her evidence, was not as strong as that of the other members of her family. It seems that her attitude and approach to the incident of 13 October 2004 has changed over time. The possibility that she was largely responsible for the payment of the money to her mother cannot be ruled out. There was a significant exchange between the defence counsel and Elizabeth concerning the receipt of the K25,000.00 and its deposit into two accounts with the ANZ Bank. Mr Sheppard put it to Elizabeth that this showed that she and her family had blackmailed James Yali for sleeping with her sister. She denied that it was blackmail, but said it was payment for the shameful things he had done to the family. This suggested a certain degree of complicity in and rationalisation of the payment. There is also the issue of her admission that she filled in a blank birth certificate form, which had been faxed to her when she was at the accused’s office, in February 2005. This suggests that she was, at that time, taking steps to protect the accused. I give these as examples of the conduct of this witness, which have led me to qualify my assessment of her as a witness of truth. I could not believe everything she said.

Witness No 6 was Constable Adam Yawing. He was the police office who first received the complaint from Oscar and Olivia. I regard First Constable Yawing as a witness of truth.

Witness No 7 was Johnson John. His evidence is significant, if it is to be believed, because he was present at the Madang Butchery house both when the accused picked up the complainant and when he dropped her off. There are some arguable inconsistencies between his evidence and that of other witnesses regarding those two events. For example he said that Olivia did not lock the house, whereas she said she did. He said he saw the accused dragging the complainant towards the house when he dropped her off, whereas Oscar (who was with him), did not say that. However, from the point of view of his demeanour, he gave the impression of being a witness of truth.

Witness No 8 was Manu (Emmanuel) Larry. His evidence was of limited value. He was present in the house, he says, when the accused dropped off the complainant. He was also present in the house when he observed the accused arguing with the complainant, telling her to get into the vehicle. I regard Manu Larry as a credible witness.

Witness No 9 was Sammy Tinpidu. His evidence is significant regarding the period immediately after the accused picked up the complainant at the house. He said that he called out to Olivia who was in the back of the moving vehicle and she waved at him. He also gave evidence that he actually saw the accused dragging the complainant down the hallway of the house. Nothing in cross-examination of this witness impinged on the credibility of his evidence. I regard Sammy Tinpidu as a witness of truth.

Witness No 10 was Sheila Baim. She said that she was present when the accused dropped off the complainant at the house. She also went into the house to check on her. Nothing in cross-examination damaged her credibility. I regard Sheila Baim as a witness of truth.

Witness No 11 was Senior Constable Daniel Kapen. His evidence was of limited value. I regard him as witness of truth.

Witness No 12 was Teddy Morris. He gave evidence that he was present when the accused brought the complainant back to the house. He adopted a statement previously given (exhibit O), in which he said that he saw the accused get a lady out of the vehicle. It was Olivia. He went into the house to check on her and she was not in a good condition. He was subject to very little cross-examination. The court was given no reason to doubt his evidence. I regard Teddy Morris as a witness of truth.

Witness No 13 was Dr Monica Clement. She conducted the clinical examination of the complainant the day after the incident. She was subject to detailed cross-examination. She gave significant oral evidence about redness in the complainant’s vagina, additional to the details she recorded on the sexual assault medical examination report (exhibit P) and in her affidavit. The value of her evidence and the opinion she expressed (particularly that this was a case of forced penetration) was unaffected by cross-examination. I regard Dr Monica Clement as a credible witness.

Witness No 14 was Dr Lahui Geita. The credibility of his evidence suffered a little due to his admission that he had in his affidavit included details of a clinical examination that he did not actually conduct. Apart from that, there was no reason to doubt the veracity of his evidence. I regard Dr Lahui Geita a credible witness.

Witness No 15 was First Constable Jenny Ariku. She became involved in the case 10 days after the incident, on 24 October 2004. She was cross-examined vigorously as to the circumstances in which she obtained, and participated in the altering of, a handwritten statement by the complainant. I consider that she provided an adequate explanation of that occurrence. No other reason was given to doubt the veracity of her evidence. I regard First Constable Jenny Ariku as a witness of truth.

Witness No 16 was Rose Yawing, one of the complainant’s schoolteachers. Her evidence was of limited value. I regard her as a witness of truth.

Witness No 17 was John Koito Bananga. His evidence was of little or no value. I regard him as a witness of truth.

Witness No 18 was Detective Senior Sergeant Steven Yalamu. He was subject to intense cross-examination as to his knowledge of various documents and his conduct of the police investigation. He was asked whether he was concerned about the letter of demand (exhibit E) and a number of other documents, exculpatory in nature, which had been signed by the complainant (exhibits I, D). At one stage of his evidence, in answer to a question from defence counsel, he indicated that he was out to get the accused, James Yali, at all costs. I will address the significance of that statement later. However, in the circumstances, it was not a statement that led me to conclude that he was an unreliable witness. I regard Detective Senior Sergeant Steven Yalamu as a witness of truth.

The accused, James Yali, gave evidence on day No 11 of the trial. His evidence laid the foundation for his primary defence: that this was a case of consensual sexual intercourse between adults. Furthermore, he was the victim of blackmail and he had been set up by the complainant’s family and the police, who framed the evidence against him. He also feels that there may be political influences involved.

He testified that he had a personal, intimate relationship with the complainant for about two years prior to 13 October 2004. His version of events was diametrically opposed to the complainant’s and that of other witnesses who said that they were present when he picked her up and later dropped her off at the house.

The accused was not obliged to give evidence. I agree with Mr Sheppard’s submission that, considering he has given evidence, the court has the benefit of being able to compare the manner in which he gave it and the manner in which the complainant gave her evidence. In many respects the accused’s evidence, particularly about the sequence of events and where and when certain things happened, was consistent with the State’s case. I agree with Mr Sheppard’s submission that the accused appeared to be quite candid, by testifying that he had a two-year relationship with the sister of his de facto wife. However, the telling consideration at this stage of the court’s decision-making process is an assessment of the credibility of this witness in view of his demeanour in the witness box. On that point I was unable to agree with the assessment of the demeanour of the witness contended for by his counsel. The accused was not forthright in his denials. On a number of occasions his answers to questions were couched in terms of ‘I could not recall’ or ‘I would not be able to recall’. Asked whether he had given instructions to any other people to draft documents for the complainant’s signature, his answers were couched in terms of ‘not on my instructions’ or ‘I would not know’.

Assessment of the demeanour of a witness is largely an intuitive process. Having considered the whole of his evidence, I did not think that the accused was a convincing witness.

CONTENTIOUS FACTUAL ISSUES RELATING INDIRECTLY TO THE ELEMENTS OF THE OFFENCES

The main factual issues in this category are as follows:

1 What happened when the accused picked up the complainant at the Madang Butchery house?

2 Did the complainant have the opportunity to leave the accused after he picked her up at the house?

3 What happened when the accused returned the complainant to the house?

4 What did the medical evidence reveal?

5 Was there a recent or prompt complaint?

6 Who drafted the letter of demand?

7 In what circumstances did the complainant sign the exculpatory documents?

8 Was the accused blackmailed?

9 Was there an improper police investigation?

I will examine them one by one.

WHAT HAPPENED WHEN THE ACCUSED PICKED UP THE COMPLAINANT AT THE MADANG BUTCHERY HOUSE?

On the night of 13 October 2004, after the accused dropped off Oscar and others at Madang Resort, he returned to the house to pick up Olivia. The accused’s evidence is that this was part of the plan he and Olivia had made that morning when he dropped her off at school – that he would collect her that night and they would go somewhere to have sex. It was part of their plan to get Oscar out of the way, so they could have another assignation, as they had done on several occasions over the previous two years. That was the defence case.

The complainant’s evidence is quite the opposite. She did not want to go out and have sex with the accused. She had had forced sex with him twice previously. She did not want to go out to Madang Resort with him and Oscar. She wanted to stay home and study for her forthcoming exams. She did not get on the vehicle that he was driving voluntarily. He forced her to do so by threatening that if she did not, he would kill Oscar.

Two other witnesses gave evidence that they were present or in the vicinity: Johnson John and Manu Larry.

Johnson said he saw the accused tell the complainant to get on the vehicle. She was scared but no one was around to support her so she got on. He says that the accused insisted. He did not assault or physically force her. Manu observed the events from the kitchen. He said that James and Olivia were arguing for about 20 minutes before she got on the vehicle.

I do not believe the accused’s evidence that he picked up Olivia as part of a pre-arranged plan to go with her somewhere for sex. I did not find his evidence on this matter convincing. Nor did I find it convincing that he had a two-year personal and intimate relationship with Olivia. Acceptance of that evidence would entail finding that he had a relationship with Olivia before he commenced his relationship with Elizabeth. I cannot believe that. The evidence of Johnson and Manu corroborates the complainant’s evidence that she was to some extent forced to get into the vehicle. No weapons were used. The accused did not assault her. He remained in the vehicle. She was outside. He spoke to her harshly and ordered her to get in. The fact that she climbed on the tray of the vehicle, a utility, provides further support for the conclusion that she got on reluctantly.

There is insufficient evidence to support a finding that the accused was drunk or not in control of his senses. It is likely that he had been drinking, but only mildly. The complainant says that the accused threatened to kill her brother. I find that he uttered words to that effect. However, I cannot accept that he said those words in a way that suggested that he actually intended to carry out his threat. I conclude that words to that effect were uttered in the course of a heated exchange with the complainant. I infer that it was the accused’s intention to convince her that she should get into the vehicle with him.

DID THE COMPLAINANT HAVE THE OPPORTUNITY TO LEAVE THE ACCUSED AFTER HE PICKED HER UP AT THE HOUSE?

The question here is whether Olivia had the physical opportunity to run away, escape or leave the accused at any time after he picked her up at the house. Mr Sheppard submitted that she had many opportunities to do so. She could have locked herself in the house and protected herself from the accused. She could have jumped out when the vehicle slowed down at the Smugglers Inn junction. She could have got out when they went to Smugglers Inn, when the accused went inside to make phone calls. Next, they stopped at the provincial government offices for the first time. The accused went into the office. The complainant could have gone down to the police station, which was not far away. When they went on the North Coast Road the vehicle stopped at Mis Trading. When they went back to the provincial government offices, while he was opening up the office, she could have got out. There were people walking past and she should have sung out for help.

Most of these are not, in my assessment, physical opportunities for the complainant to do anything other than go along with the accused. However, there are two that fall into a different category.

The first is when they went to the Smugglers Inn. She was left on the tray of the vehicle while the accused went inside. I accept the accused’s evidence that there were a number of people around. The governors’ conference was being held. It is to be expected that Smugglers Inn, amongst other accommodation establishments in Madang town, would have been well populated. The complainant gave no evidence that anybody was left guarding her or that anybody was looking at her in a way that made her scared. I find that she had a physical opportunity at that point to leave the accused.

The second opportunity presented itself when they went to the provincial government offices the first time. Her evidence is that he went inside, saying that he was going to make a phone call to his friend, Grace. His evidence is that he did go to his office but he stayed in there for 20 or 25 minutes. He was not ringing Grace but making political calls and that Olivia to the best of his knowledge remained in the vehicle. I tend to prefer the complainant’s version of events – that he was only inside the office for a short time. Nonetheless I find that she did have the physical opportunity to make a move. She could have run for her life to the police station or just run to the main road. She may have had a good reason for not doing those things. But based on the court’s view of the site, I am satisfied that there was a physical opportunity for her to leave the accused at that point.

WHAT HAPPENED WHEN THE ACCUSED RETURNED THE COMPLAINANT TO THE HOUSE?

There are very important findings of fact to be made here. Two very different versions of events are presented.

On the one hand, the accused gave evidence that he simply dropped off the complainant (after having had consensual sex with her). He drove her straight from his office to the Madang Butchery house. He did not have to wake her up. She opened the gate as he asked her to do as she had the keys. He drove in, parking right in front of the entrance to the house. He checked that the residence was clear. When he was leaving, he met Oscar and took him to his residence at Kalibobo, gave him some meat and dropped him back at the house. Then he, the accused, went back to his residence.

On the other hand, the complainant’s evidence is that she was too weak (after having been raped) to get out of the vehicle herself. So he had to take her into the house. He left her on the bed. Then he left.

There are six other witnesses who gave evidence about what actually happened: Oscar Daniels; Johnson John; Manu Larry; Sammy Tinpidu; Sheila Baim; and Teddy Morris.

Oscar said that when he and Johnson came back from Madang Resort (having gone to check where Olivia was) they saw James’ vehicle parked at the front door of the house. He says he walked into the house and James was on the phone, then James took him back to his house to give him some meat.

Johnson’s evidence is slightly different. He says that when he and Oscar returned from Madang Resort the gates were open and the car was parked within the area of the house. They saw James enter the house and switch off the lights. He saw James take Olivia from the vehicle and drag her into the house.

Manu did not say that he saw what happened. He was sick and asleep in the house. He woke up, hearing footsteps like someone being dragged. He heard weak crying. He got up and saw James Yali’s vehicle going past the house.

Sammy says that he was at the house when James came back. James came back once, went back and returned later. When the vehicle returned, James himself opened the gate and brought Olivia into the house. He and Manu (who he was with) heard a woman crying and a man dragging a woman into the house. He says that he saw James Yali dragging Olivia Daniels into the room. He saw him dragging her down the hallway. There is a window on the wall between the bedroom and the hallway and he could see clearly.

Sheila says that she was present when the accused drove his vehicle to the house first for a short time and then returned five minutes later. She saw him open the left-hand side of the vehicle and drag Olivia into the house.

Teddy says he saw the accused take a lady out of the vehicle and hold her against his side as they walked into the house.

The evidence of these six witnesses corroborates in general terms the version of events given by the complainant. They contradict the accused’s evidence. The accused was not a convincing witness. I have some concerns about the apparent inconsistency between Oscar and Johnson’s evidence, but not to the extent that I reject its thrust. I conclude that the version of events presented by Olivia is the correct one.

WHAT DID THE MEDICAL EVIDENCE REVEAL?

The medical evidence consisted of the affidavits of the two doctors who saw Olivia Daniels on 14 October 2004, the sexual assault medical examination report compiled by Dr Clement and the two-page sexual laboratory request form (exhibits P, Q and R), together with the oral testimony of Dr Clement and Dr Geita.

The documentary medical evidence considered alone, is largely inconclusive as to whether intercourse was consensual or otherwise. It is conclusive, in that it proves that sexual intercourse took place recently.

However when the documentary evidence is put alongside the oral testimony I am inclined to the view that the medical evidence is consistent with sexual intercourse being non-consensual. Dr Clement gave significant evidence about redness in the complainant’s vagina. She was cross-examined intensely on this point. It was put to her that the redness could have been caused by other things; vaginitis etc. Dr Clement considered that that could possibly be the case but it remained her opinion that this was a case of sexual assault. She formed that opinion in light of the observations she made about the condition, both physical and emotional, of the complainant at the hospital. Dr Clement’s opinion was that it looked to have been a case of forced entry (of the complainant’s vagina by a penis) given the complainant’s behaviour and condition.

Dr Geita’s evidence was more favourable to the accused in that he stated that in a rape case bruising will almost invariably be expected and in this case there was no evidence of bruising. Dr Geita, however, did not conduct Olivia’s examination.

I conclude that the medical evidence, considered in toto, corroborates – though not conclusively – the State’s case that the intercourse that occurred was non-consensual.

WAS THERE A RECENT OR PROMPT COMPLAINT?

In rape cases the court often takes into account the promptness or delay with which the matter has been brought to the attention of the police. In this case it is an undisputed fact that the matter was not brought to the attention of the police until ten days after the incident. That is, when Oscar Daniels spoke to Constable Yawing on Saturday 23 October 2004.

Oscar Daniels had an explanation for this. When asked why it took him so long, and why he chose to get Olivia taken to Lae, and why he – rather than Olivia – was the one who brought the matter to police attention, he explained that he was scared, that the accused was a big man and he was worried about the consequences of taking it to the police.

I do not think that much can be taken from the timing of the police complaint. The defence case is, as I understand it, that it took this long to complain as it allowed Oscar time to concoct a plan to blackmail the accused. I am more inclined to accept Oscar’s explanation in view of the finding, already made, that he gave the appearance of being a witness of truth.

WHO DRAFTED THE LETTER OF DEMAND?

The letter of demand dated 26 October 2004 (exhibit E) had four signatories: Mrs Daniels, Mr Brian Daniels, Mr Daniels Jounior [sic] and Miss Olivia Daniels. The court heard from three of them. The only one not to give evidence was Brian.

Elizabeth Daniels gave evidence as to the circumstances in which the letter was signed. The accused gave evidence that he knew nothing about the letter until it was given to him at his residence. I have concluded already that I regard Helen Daniels, her daughter Olivia and her son Oscar as, essentially, witnesses of truth. I have expressed reservations about the credibility of the accused’s evidence. I exclude Helen, Olivia and Oscar as being the authors of this letter.

I have reservations about accepting Elizabeth’s evidence that she had nothing to do with the letter. She says that the letter was dated 26 October and she did not come to Madang until 1 November. I do not think anything turns on that. A letter can be easily backdated to make it appear that it was written at some time earlier than it actually was. I do not exclude the possibility that Elizabeth was the author of the letter.

I do not accept the accused’s evidence that he knew nothing about the letter. I am more inclined to conclude that he knew quite a bit about the letter and that at the time it was signed – which I estimate to be on or about Thursday 4 November 2004 – he and his associates, including, probably, Elizabeth, had decided that this was the most appropriate way to deal with the problem he was then facing.

IN WHAT CIRCUMSTANCES DID THE COMPLAINANT SIGN THE EXCULPATORY DOCUMENTS?

Besides the letter of demand (exhibit E) there are four exculpatory documents:

the letter from the Daniels’ family to the OIC, CID, Madang, dated 28 October 2004, exhibit H;

a letter from Olivia Daniels to Deputy Commissioner Baki, dated 12 November 2004, exhibit I;

the undated document entitled "my affidavit before my lawyer", exhibit D; and

the affidavit dated 13 December 2004, witnessed by A Amet Junior as Commissioner for Oaths, exhibit G.

As to the letter of demand, (exhibit E) Oscar and Elizabeth say that the complainant signed it when she was staying at the Owen family residence at Madang Technical College. They signed it on Elizabeth’s insistence.

As to the letter from the Daniels family to the OIC, CID (exhibit H) Olivia, Helen, Oscar and Elizabeth all say it was signed at the Owen’s residence on Elizabeth’s insistence.

As to the letter to Deputy Commissioner Baki (exhibit I) Olivia says that she was told to sign it when she was in Lae for the second time in November 2004.

As to the undated handwritten document entitled "my affidavit before my lawyer" (exhibit D), Olivia says that she signed it at Jais Aben Resort, after she came back from Lae the second time. The accused’s evidence was that he and Alois Kingsley and Elizabeth took this document to Olivia when she was staying at Kauris.

As to the affidavit of 13 December 2004 allegedly sworn before Arnold Amet Junior (exhibit G), Olivia and Elizabeth say that the document was taken to Olivia when she was staying at Kauris. It was taken there by Elizabeth, accompanied by the accused and Alois Kingsley. The accused says that is not the document he took with Alois Kingsley to Kauris.

I accept the complainant’s evidence, given the assessment I have already made as to the overall credibility of her evidence, that she signed these exculpatory documents because she was asked or told to or that her sister Elizabeth insisted. The evidence she gave as to the places and the times at which she signed the documents was consistent. It tied in with the sequence of events set out earlier in this judgment as forming part of the uncontested facts. I note that the affidavit allegedly sworn in the presence of Arnold Amet Junior (exhibit G) is dated 13 December 2004, one day before the interview of the accused by the police.

The issue of the place at which the undated document (exhibit D) was signed is not critical. However, I prefer the complainant’s evidence, which was clear and consistent throughout her testimony. It was signed at Jais Aben Resort. It was the affidavit allegedly sworn before Arnold Amet Junior (exhibit G) that was brought to her at Kauris to sign.

I do not think much of Mr Miviri’s submission that these documents would have had to be drafted by a lawyer. As Mr Sheppard submitted, some of them look like they have been written by a bush lawyer.

Mr Sheppard’s submission that the complainant signed so many different documents, it is difficult to believe anything that she says, is something that I have closely and carefully considered. However, having observed the way in which the complainant gave evidence and the details she provided about the circumstances in which each document was signed, I formed the view that she has adequately explained and truthfully explained how she came to sign the documents. I find that the complainant was in a difficult and stressful set of circumstances in the period from the date of the incident, 13 October to the date of the last document, 13 December 2004. I infer, though it did come out clearly in the evidence, that she was aware that money had changed hands. She was obviously aware that the allegations against the accused were very serious and that there was a lot at stake for him. She was under pressure from her sister, Elizabeth, to sign documents. It appears that, at that stage of events, Elizabeth was willing to go along with the plan for there to be an exchange of money. Whether this is regarded as blackmail or payment of compensation or bel kol is another issue. However, having considered all the evidence, I am satisfied that the complainant gave a truthful account of the circumstances in which she signed the various exculpatory documents.

WAS THE ACCUSED BLACKMAILED?

I do not think so. As previously indicated I generally regard those who the defence alleges were three of the co-conspirators in the blackmail – Helen, Oscar and Olivia Daniels – to be witnesses of truth. I place Elizabeth Daniels in a different category.

I am not satisfied that the evidence shows that the accused was trying to bribe potential State witnesses.

However, I am inclined to the view that what happened was an attempt to make it appear that there was a blackmail, when, really, what was happening was the implementation of a plan to make a substantial payment of money in order to get the complainant and her family to drop the case. Whether this was an ethically correct or morally justifiable or legal course of action are other issues, which are not necessary for this court to decide in these proceedings. It was an important, though not crucial, part of the defence case that this was blackmail and extortion. I reject that submission.

WAS THERE AN IMPROPER POLICE INVESTIGATION?

I need to make a finding on this matter as it was something that formed part of the defence case. The most important and perhaps the only evidence presented to support the proposition was the oral testimony of the principal investigator, Det Snr Sgt Steven Yalamu. He said that he was out to get the accused at all costs.

In my ruling on the no case submission I indicated this was a cause for concern. However, having reflected on the matter and carefully examined my notes of the exchange that took place between the defence counsel and the witness leading up to this statement, it is reasonable to put a different slant on what the witness said.

Mr Sheppard’s cross-examination of Det Snr Sgt Yalamu was along the lines that ‘Wouldn’t a decent police investigator, having recently become aware of the letter of demand and the exculpatory documents and the exchange of money have reasonably formed an entirely different view of the case? Wouldn’t he be concerned about all these things?’ Det Snr Sgt Yalamu said no, he would not be concerned. It was immediately after that that Mr Sheppard put it to him that he was out to get Yali at all costs and he replied yes. I think a reasonable inference to draw from the way in which the witness said that, is that he was prepared to see the case through to the end as he had formed the view that the evidence of rape was true and correct and that in his opinion this was a solid case. Therefore he was prepared to do all that it takes to run a successful case. To get the accused convicted. The witness said nothing else to warrant a finding that he was prepared to break the law or invent evidence or frame the accused. There was no evidence to support the conclusion that this was an improper police investigation. Or that the police were out to kill a mockingbird.

Mr Sheppard properly made submissions about the apparently irregular or improper manner in which some of the evidence was adduced. His objections and submissions in that regard were dealt with in the course of the admission of the evidence. At one stage he indicated that he was considering making an application to abort the trial in view of the improper manner in which it was being prosecuted. There was no application made, however.

CONTENTIOUS FACTUAL ISSUES DIRECTLY PERTINENT TO THE ELEMENTS OF EACH OFFENCE

The main factual issues in this category are as follows:

1 Was the complainant taken away from the house against her will?

2 Did the complainant consent to sexual intercourse with the accused?

3 How old was the complainant?

4 Was there a relationship of trust between the complainant and the accused?

5 Did the complainant consent to being sexually touched by the accused?

I will now examine them one by one.

WAS THE COMPLAINANT TAKEN AWAY FROM THE HOUSE AGAINST HER WILL?

The complainant was not physically forced to get on to the accused’s vehicle. She was not herself threatened with violence. The accused had no weapon. He issued a threat to harm someone else – the complainant’s brother. However, in the circumstances, I cannot reasonably infer that that was a real threat or that the complainant would have honestly thought that it was a threat that the accused would carry out. The accused had only half an hour or so earlier picked up Oscar and taken him to Madang Resort to shout him a dinner. There was no evidence that the accused harboured any ill-feeling towards him. The complainant alleged that Oscar had been bashed up by the accused’s people in Port Moresby the previous year. However, that was really a bald allegation, with no evidence to back it up.

I conclude that the complainant was cajoled into getting on to the car. She did so reluctantly. She felt that she had to do as she was told. However, she was not taken away against her will in the relevant sense.

DID THE COMPLAINANT CONSENT TO SEXUAL INTERCOURSE WITH THE ACCUSED?

Put another way, the question to be posed, arising from Section 347A of the Criminal Code, is: has the prosecution proven beyond reasonable doubt that the complainant did not freely and voluntarily agree to have sexual intercourse with the accused?

In answering this question a number of factors are to be considered:

the testimonies of the complainant and the accused;

whether force, violence or threats were used;

whether there was hesitant or reluctant agreement on the part of the complainant;

the circumstances leading up to the time of the incident;

the circumstances prevailing at the time of the incident;

the evidence of what happened soon after the incident;

the medical evidence;

whether there were any telltale signs of a rape;

whether there was a recent complaint;

what was the conduct of the complainant and the accused in the period after the incident?

I will consider each of those factors.

I have already indicated that I found the complainant to be a fairly convincing and credible witness; much more so than the accused. Defence counsel submitted that the prosecution’s case was not advanced by the accused’s evidence. However, I consider that the opposite was the case. I do not think his evidence was frank. These two witnesses presented diametrically different versions of events. The complainant’s evidence is to be given much more weight than the accused’s.

The complainant testified that she suffered some marks and scratches on her face and sides during the course of what she indicated was an assault. However, there was no evidence to support that part of her story apart from the evidence of a couple of the witnesses who saw her back at the house that she looked distressed and was walking awkwardly. The accused did not therefore use any aggravated violence against the complainant. However, I am satisfied on the strength of the complainant’s testimony that a reasonable degree of force was used by the accused. He forced her into his office, then he forced her onto the floor or sofa, then he locked her legs and forced himself on top of her. I draw the inference from the evidence that the complainant submitted to being sexually penetrated, as there was nothing else she could do. She was overpowered by a physically stronger person. These facts tend to fall within Section 347A(2)(a) of the Criminal Code: a person does not consent if she submits to penetration because of the use of force on her.

Defence counsel’s submission was that even if the complainant indicated by words or conduct, express or implied, that she was hesitatingly, reluctantly, grudgingly or tearfully consenting, that was enough to signal consent. That is the principle that emerges from Holman’s case, a decision of the Western Australian Court of Appeal, applied in PNG, for example, by Doherty J in The State v Michael Rave and Others [1993] PNGLR 85. It is a moot point whether that principle should be applied any longer in light of the detailed statutory guidelines introduced by the 2002 amendments to the Criminal Code. That aside, and presuming that the principle is applicable, I do not think that the evidence supports the conclusion that there was any sort of hesitant, reluctant, grudging or tearful consent given by Olivia Daniels. Those epithets seem to accurately describe her state of mind in agreeing to get on to the accused’s vehicle when they left the Madang Butchery house. But I cannot conclude that they relate to the circumstances in which she was sexually penetrated.

I have carefully considered all the circumstances leading up to the incident in the office, where sexual penetration took place. I have rejected the evidence that it was a planned assignation, making use of the opportunity provided by Olivia’s mother and sister being out of town and involving Olivia pretending that she had homework to do and getting Oscar out of the way and then heading to a secure location to have consensual sex. I can see that there is an argument to say that Olivia must have known what was going on when the accused came to the house a second time and insisted that she go with him; especially as, she said in evidence, he had done something similar twice before. She should have refused point blank to get into the car. As Mr Sheppard submitted, she could have locked herself in the house. There were two boys, or young men, there. They could have protected her. Instead she got on the vehicle and – the argument may run – indicated, by her conduct, that she was willing to go ahead with what the accused had in mind. Mr Sheppard did not put the argument exactly in those terms but, if he had, I would have rejected it. I would have found that even if Olivia was indicating by her conduct that she had knowledge of the accused’s plan and was willing to go ahead with it, she had the right of veto at the critical moment to withdraw whatever consent she might have already signalled. She clearly sought to exercise her veto power by attempting to physically repel the accused. Section 347A(2)(j) of the Criminal Code would have applied. It states:

Circumstances in which a person does not consent to an act include, but not limited to, the following - ... the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

As to what happened at the critical moment – when sexual penetration happened – I am satisfied that the evidence supports the conclusion that the accused forced the complainant into his office, locked the door and forced himself upon the complainant and penetrated her with his penis and fingers.

As to what happened immediately after the incident, there is a considerable body of evidence to indicate the events that transpired back at the Madang Butchery house. The accused had to open the gate and physically assist the complainant into the house and on to her bed. There was evidence that she was physically and emotionally distressed, and that Oscar and Johnson attempted to get an ambulance to take her to the hospital. I found all of this to be strong evidence consistent with the complainant’s testimony that she was raped.

The medical evidence is, as indicated earlier, also consistent with the complainant having been raped. She was dealt with at the hospital as if she had been a victim of sexual assault. I accept Mr Sheppard’s submission that the documentary medical evidence is also consistent with the complainant having engaged in consensual sex. However, the doctor who conducted the clinical examination was of the opinion that it was a case of sexual assault. This supports the conclusion that there had been a lack of consent. In R v Merembu Bongab [1971-1972] PNGLR 433 it was held that medical evidence of a complainant’s genitalia was not always a necessary piece of evidence, especially if the accused is not alleged to have committed any aggravated violence against the complainant. That is the case here. There was no aggravated violence. This reduces the extent to which the court is required to rely on the medical evidence. Having said that, I reiterate that the medical evidence considered in toto supports the conclusion that there was a lack of consent.

Were there any other telltale signs of rape, such as damaged clothing? The defence counsel rightly highlighted the State’s failure to tender the clothes the complainant was wearing and had stripped from her during the incident. It was certainly desirable for that evidence to have been produced. But it is not a necessary requirement. I draw no inference adverse to the State’s case due to the failure to adduce that evidence.

I have addressed the delay in making the complaint. Ten days passed before the matter was brought to the attention of the police. There was an adequate explanation for that.

As to what happened after the incident – the movement of the complainant to Lae on two separate occasions, the signing of various exculpatory documents by the complainant, the letter of demand, meetings between the complainant’s family and representatives of the accused and the accused himself at one stage, the receipt of two cash sums totalling K30,000.00 by the complainant’s mother – this can be interpreted in different ways. I have already rejected the argument that the complainant and her mother and brothers were responsible for blackmailing the accused. It is more likely that all those things were done at the behest of the accused, and probably Elizabeth Daniels, in an attempt to stop the police investigation in its tracks and to compensate the complainant’s family for what he did to the complainant. In the final analysis I consider that all of that evidence supports the conclusion that what the accused did amounted to rape: forced sex, without consent.

In light of the above I am satisfied beyond reasonable doubt that the complainant did not give free and voluntary agreement to be sexually penetrated by the accused. She did not consent.

HOW OLD WAS THE COMPLAINANT?

This is a critical issue for the purposes of count 3 (abuse of trust). One of the elements of the offence under Section 229E is that the complainant was a child between the ages of 16 and 18 years.

The prosecution, relying on the oral evidence of the complainant’s mother, Helen Daniels, says that the complainant was born on 23 July 1987, making her 17 years of age on the date of the incident, 13 October 2004.

The defence, relying on the birth certificate of the Catholic Health Service, Archdiocese of Rabaul (exhibit M), says the complainant was born on 22 July 1984, making her 20 years of age on the date of the incident. Mr Sheppard submitted that the admission into evidence of the birth certificate brought Section 57 (certificates relating to births, deaths and marriages) of the Evidence Act into operation.

Section 57 states:

A certificate relating to the birth, marriage or death of any person in—

(a) the country; or

(b) a state or Territory of Australia; or

(c) the United Kingdom; or

(d) a member state of the Commonwealth of Nations,

if it purports to be issued by the officer authorized by the law of the place concerned is evidence of the matters stated without proof of the seal or stamp or signature or of the official character of the person appearing to have signed it. [Emphasis added.]

I do not accept the submission that Section 57 operates in this case. The court heard evidence about how the birth certificate came into existence. Elizabeth Daniels testified that a pro-forma certificate was faxed to her in the accused’s office in February 2005. She filled in the details herself. In a sense, she forged the document. This does not establish that the details inscribed on the document are false. But it does give rise to grave doubts whether the certificate is of any value at all as a piece of evidence. In the words of the section it is doubtful whether it can properly be regarded as a certificate purporting to be issued by an officer. The form has provision for a health centre stamp but there is no stamp or seal affixed to the document. Furthermore the certificate does not purport to be issued by the officer authorised by the law of Papua New Guinea to register and certify births: the Registrar-General appointed under the Civil Registration Act 1963. There is no evidence that the Registrar-General delegated any of his powers or functions to the Catholic Health Service. Even if Section 57 did operate, exhibit M would have been evidence tasol – not conclusive evidence – of the complainant’s date of birth. The other evidence, particularly her mother’s evidence, would still have had to be considered.

As to Helen Daniels’ evidence, I accept Mr Miviri’s submission that she, as the complainant’s mother, would reasonably be expected to be the person best placed to say when the complainant was born. Attempts were made to, generally, discredit Helen Daniels as a witness and, specifically, to show that she is the sort of person who could easily get the dates of birth of her five children mixed up. The defence counsel did not, in my assessment, succeed on either of those scores. I concluded earlier that Helen Daniels was generally a witness of truth. I do not consider that she could get the date of birth of her second daughter mixed up by three years. I am satisfied that her evidence is sound and that Olivia Daniels was born in July 1987.

If I had had a reasonable doubt about the complainant’s age I would have invoked Section 63 (age) of the Evidence Act, which states:

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

I saw and observed Olivia Daniels in the witness box and in the course of the viewing of the two sites visited by the court on five different days of the trial, separated in time by two weeks. The trial was held about thirteen months after the incident of 13 October 2004. I was seeing and observing a youthful female who was (if I restrict myself to the options presented by the prosecution and the defence) either 18 or 21 years of age. I would have determined that she was at the time I saw and observed her, 18. This would have reinforced the conclusion that she was at the relevant time 17 years of age.

WAS THERE A RELATIONSHIP OF TRUST BETWEEN THE COMPLAINANT AND THE ACCUSED?

No, not in the relevant sense.

I accept the defence counsel’s submission that the relationship is best described as: the accused was the de facto husband, lover or boyfriend of the complainant’s sister. If Elizabeth Daniels were legally regarded as the accused’s second wife, that would make Olivia the accused’s sister-in-law. But, even then, it is not necessarily unlawful for a person to have sex with his sister-in-law.

I acknowledge Mr Miviri’s submission that the relationships of trust, authority or dependency prescribed by Section 6A(2) of the Criminal Code and capable of giving rise to an offence under Section 229E, do not comprise an exhaustive list.

However, in all the circumstances of this case the accused would be denied the full protection of the law if the relationship between him and the complainant were regarded as one of trust.

DID THE COMPLAINANT CONSENT TO BEING SEXUALLY TOUCHED BY THE ACCUSED?

No, for the same reasons I gave for reaching the conclusion that she did not consent to being sexually penetrated.

I will now examine the elements of each of the charges.

DETERMINATION OF COUNT 1: ABDUCTION

To restate, this charge has three elements:

1 the accused took the complainant away;

2 against her will;

3 with intent to carnally know her.

I am satisfied beyond reasonable doubt as to element Nos 1 and 3. I am not so satisfied as to element No 2.

Therefore the accused is not guilty of count 1.

DETERMINATION OF COUNT 2: RAPE

This charge has two elements:

1 the accused sexually penetrated the complainant;

2 without her consent.

I am satisfied beyond reasonable doubt as to both elements.

Therefore the accused is guilty of count 2.

DETERMINATION OF COUNT 3: ABUSE OF TRUST

This charge has three elements:

1 the accused engaged in an act of sexual penetration of the complainant;

2 the complainant was a child between the ages of 16 and 18 years;

3 the complainant was a child with whom the accused had an existing relationship of trust.

I am satisfied beyond reasonable doubt as to element Nos 1 and 2. I am not so satisfied as to element No 3.

Therefore the accused is not guilty of count 3.

DETERMINATION OF COUNT 4: SEXUAL ASSAULT

This charge has three elements:

1 the accused touched with a part of his body;

2 the sexual parts of the complainant;

3 without the complainant’s consent.

I am satisfied beyond reasonable doubt as to all elements.

Therefore the accused is guilty of count 4. However, as this count was expressed to be an alternative to counts 1 and 2 it is not appropriate to record a conviction against him on this count.

VERDICT

I find that the accused, James Yali, is:

1 not guilty of count 1, abduction, and acquit him accordingly;

2 guilty of count 2, rape, and convict him accordingly;

3 not guilty of count 3, abuse of trust, and acquit him accordingly; and

4 guilty of count 4, sexual assault, however, as that charge is expressed as an alternative to count 2, no conviction is recorded.

Verdict accordingly.

__________________

Lawyer for the State: Public Prosecutor
Lawyers for the accused: Young & Williams